COURT FILE NO.: 584/08
DATE: 20090130
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Ferrier, Lederman and Swinton J.J.
B E T W E E N:
C. B. AND D. B.
Applicants
- and -
SHARON GOLLERT, DIRECTOR FOR THE ONTARIO MINISTRY OF COMMUNITY AND SOCIAL SERVICES AND MINISTRY OF CHILDREN AND YOUTH SERVICES, THE HONOURABLE DEB MATHEWS IN HER CAPACITY AS MINISTER OF CHILDREN AND YOUTH SERVICES, CHILD AND FAMILY SERVICES REIVEW BOARD AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Respondents
Mr. Jeffrey Wilson
for the Applicants
Ms. Sarah Blake
for the Respondents
HEARD AT TORONTO: 20081218
REASONS FOR JUDGMENT
FERRIER, J.
[1] Publication of any information which identifies C.B., D.B., K.B., M.B., J.B., or the adoptive child, is prohibited and punishable upon a finding of contempt.
[2] The applicants are husband and wife. They were approved in Ontario for the adoption of a baby girl presently in an orphanage in China, subject to the approval of Chinese authorities. In the circumstances described below, the Director of Adoption Services (“the Director”), acting under the Intercountry Adoption Act, 1998, S.O. C.29, as amended, S.O. 1999, C.12 (the “Act”) placed a “hold” on the process in Ontario until a further home study of the applicants could be completed.
[3] The applicants sought relief from this court to remove the “hold” on the process and for an order that the adoption placement proceed.
[4] Upon completion of oral submissions, because of urgency, this court made an order, described below, with reasons to follow, which in its effect granted the relief sought by the applicants. The following are the reasons.
FACTS
[5] The applicants C.B. (“husband”) and D.B. (“wife”) reside in Ontario. Sharon Gollert is the Director acting under the authority of the Act.
[6] In January, 2005, the applicants retained the Children’s Bridge (“the licensee”) to facilitate their adoption of a child. The licensee is an adoption agency licensed under the Act. It is the role of the licensee to facilitate the various steps involved in the adoption process. The applicants also retained social worker Jackie Poplack, an approved adoption practitioner, to complete a home study assessment of their family as required under section 5 of the Act. The purpose of the home study report is to assess the eligibility and suitability of the applicants to adopt a child.
[7] Ms. Poplack completed the home study on October 12, 2005 and recommended the approval of adoption of a child of up to approximately 12 months of age. The home study report was sent to the Ministry of Children and Youth Services (“the Ministry”) for the approval of the Director. The then Director approved the applicants as eligible and suitable on December 16, 2005.
[8] If an adoption is not completed within 24 months of the Director’s approval, a home study update must be completed by an approved adoption practitioner.
[9] A further home study was necessary and was completed, again by Ms. Poplack, on April 2, 2008. She again recommended the applicants be approved for the adoption of a child from China.
[10] On April 18, 2008, the Director (Ms. Gollert) again approved the applicants as eligible and suitable to adopt.
[11] Subsequently, the China Centre of Adoption Affairs (C.C.A.A.) advised that a child had been matched with the applicants.
[12] On September 24, 2008, the Director issued the prescribed Notice of Director’s Decision under subsection 6(2) of the Act, approving the proposed adoption.
[13] The C.C.A.A. required the applicants to travel to China and complete the necessary procedures in China by January 8, 2009. The respondents, in submissions, indicated that the date could be extended but no evidence to that effect was provided, nor was there evidence concerning what circumstances might cause the C.C.A.A. to extend the time limit.
[14] Thus the urgency of this application.
[15] It should be noted that each home study comprised many hours of interviews and research and in both home studies the applicants came through with flying colours.
[16] By mid October, 2008, the applicants had made arrangements to fly to China on October 27, 2008, to complete the process in China and to return with their child to Ontario.
[17] On October 15, 2008, things went awry when J.B., the estranged sister of the husband, contacted the licensee, Children’s Bridge alleging that her brother had sexually abused her when she was 10 years old and he was 13 years old.
[18] On the same day, J.B. faxed a letter to all Toronto adoption practitioners and three China agencies and the Director’s office outlining her allegations. The alleged sexual abuse occurred over a period of over 2 months. J.B. also alleged a history of physical abuse by her father against her causing her to move out of the home when she was sixteen, the day after an alleged severe physical attack by her father.
[19] On October 16, 2008, the Director took a phone call from J.B. The length of the call is not recorded in the notes kept by the Director, but it lasted several minutes. The notes of the call made by the Director comprised over three type written pages.
[20] In the call, J.B. elaborated on the alleged sexual abuse but limited the period to the “summer” when she was ten, until school started. She also alleged physical abuse by her father against her brother C.B.
[21] J.B. indicated that she was coming forth with this information because she felt her brother was not a suitable candidate for adoption of a female child.
[22] J.B. indicated that she was in the process of obtaining hospital records as evidence to substantiate her allegations. She also indicated that she had been to the police department to obtain records for the same purpose.
[23] In this telephone conversation, J.B. claimed that after she left home following a beating when she was sixteen, she lived at a youth hostel and subsequently went to Ryerson University. She said that her parents did not support her financially in any way after she left home.
[24] By a letter dated either October 15^th^ or 16^th^ 2008, Children’s Bridge asked the Director if her approval was still valid. Sandra Forbes, executive director and author of the letter, then left on vacation until November 12, 2008.
[25] On October 16, 2008, prior to any notice to the husband and wife, and without input from either of them or anyone on their behalf, the Director wrote to all relevant authorities including the C.C.A.A., Citizenship and Immigration Canada, and Children’s Bridge, indicating that the adoption approval had “been temporarily placed on hold to review further information.”
[26] When the husband and wife learned of this development through Children’s Bridge, the husband telephoned the Director to obtain information concerning the allegations made by J.B. The Director did not give C.B. any information in that regard and limited her comments in the telephone conversation to the nature of her role, the nature of the role of the licensee and the practitioner, and the process in general terms.
[27] The Director indicated to C.B. only that new information had been received.
[28] The Director took the position then, and throughout the hearing, that an updated home study was required.
[29] Ms. Poplack, the adoption practitioner was on vacation, but was in touch with the applicants by email.
[30] Understandably, the applicants were “devastated” and highly frustrated by this turn of events. Ms. Poplack indicated that it would be necessary for her to meet with J.B. and review the information.
[31] Nevertheless, the applicants quickly responded that they understood the requirement that Ms. Poplack be thorough. The husband and wife expressed the wish to meet with Ms. Poplack as soon as possible after her return from vacation on November 2, 2008.
[32] On October 23, 2008, a lawyer on behalf of the applicants advised the Ministry that the Children’s Aid Society (“C.A.S.”) had investigated the allegation of sexual abuse many years ago made by J.B. and that the husband had been completely exonerated.
[33] Counsel asked the Ministry to search for the C.A.S. report, but there is no evidence that such a search was undertaken.
[34] When Ms. Poplack returned to Ontario, she withdrew from the case on November 3, 2008, on the advice of her lawyer and suggested that another adoption practitioner do an updated home study.
[35] On November 3, 2008, in an email to the licensee and the adoption practitioner, the Director makes it plain that the licensee must manage “the hold status of their adoption.”
[36] In that email, in a rather disingenuous approach, the Director indicated that “the Children’s Bridge requires an update report and recommendation in order to manage the family in facilitation of the adoption” – this after the Director indicated it was she who required an updated home study and that the matter would be placed on hold “to review further information.” The husband and wife cooperated fully with the attempt by the Children’s Bridge to seek out an adoption practitioner to do the home study update.
[37] All the while the Director provided no information to the husband and wife concerning what J.B. had alleged and gave them no information on the substance of the telephone conversation she had with J.B. on October 16^th^.
[38] Under the Act, a decision by the Director refusing or approving a proposed adoption is reviewable at a hearing before the Child and Family Services Review Board (“the Board”).
[39] The husband and wife made an application for such a hearing on November 12, 2008. On November 17, 2008, the Vice Chair of the Board wrote to the applicants indicating that their application was premature because “there [was] no communication to indicate that the Director [had] made a decision to either refuse or approve [the] adoption.”
[40] It should be noted that in the meantime the husband’s mother had written to the Director on October 20^th^, denying the allegations of J.B. and setting forth information, reviewed in more detail below, to the effect that J.B., her daughter, was a pathological liar and had been so since she was a teenager.
[41] As the saga progressed, on the recommendation of counsel, the applicants met with Dr. Sol J. Goldstein, a psychiatrist and psychoanalyst of considerable reputation. Dr. Goldstein referred C.B. to Dr. Rex Collins, a registered psychologist, who conducted psychological testing of the husband. In an affidavit sworn on November 16, 2008, Dr. Goldstein gave his expert opinion regarding the family. He swore a supplementary affidavit dated December 4, 2008. Dr. Goldstein has had broad experience in the family law field in the context of custody, access and parenting issues where allegations of sexual abuse have been made. Dr. Goldstein interviewed C.B. and D.B. at length and also interviewed his parents K.B. and M.B. at length. Dr. Goldstein found no indicators of concern in respect to parenting by C.B. He saw no indication of mental health disturbance personality or thought disorder or questionable impulse control. Dr. Goldstein swore that the information from Dr. Collins’s testing is that C.B. shows no indications of the personality type or profile consistent with a concern of pathology or aberrant or antisocial behaviour.
[42] Dr. Goldstein swore that “this couple presents absolutely no identifiable risk of harm or concern by reason of an antisocial, aberrant or psychopathological profile on the part of [C.B.].”
[43] When the applicants applied for a hearing before the Board, they filed the first affidavit of Dr. Goldstein and asked the Board to issue summonses to Sharon Gollert, J.B. and Credit Valley Hospital Records department (concerning the psychiatric records of J.B.).
[44] The Minister was copied with the material.
[45] It took until November 25, 2008, to retain another adoption practitioner, one Sofie Stergianis, no one else having come forward despite extensive efforts.
[46] It is apparent from the material that J.B. was aware that a new adoption practitioner had taken over. On December 3, 2008, Ms. Stergianis indicated that she was withdrawing from the home study update citing “potential for two litigations.” It can reasonably be inferred that J.B. contacted Ms. Stergianis.
[47] Efforts were then made, including efforts by the Ministry, to find another adoption practitioner, without success. It was only during the hearing on December 18, 2008, when this matter was argued, that counsel for the respondents indicated that Sandra Forbes of Children’s Bridge would be acceptable as a person to do the update.
[48] By the time of the hearing the applicants had been referred by counsel to Dr. Chamberlain who also provided expert opinion. Dr. Chamberlain, is one of Canada’s foremost psychiatrists in the field of child psychiatry and the family in all contexts including adoption and sexual abuse. He has been qualified in Ontario courts as an expert witness concerning sexual misconduct allegations against a parent, including allegations of an historic nature, where the allegations are usually denied.
[49] Shortly put, Dr. Chamberlain swears that it is his expert opinion that the probability of risk to the child is very low.
[50] Furthermore, he swears that if there is “any substance to the allegations, they suggest immature incestuous activity, not a pedophilic preference or an enduring pattern with prognostic value.”
[51] Dr. Chamberlain also swears that although he has not interviewed J.B., it is “unlikely that my interviewing her and examining the clinical record would significantly alter my confidence in reaching the above opinion” in the circumstances.
[52] Significantly, Dr. Chamberlain swears that “a further home study is beside the point.”
[53] Neither the licensee, the adoption practitioner, nor the Director has any expertise in assessing the veracity of sexual abuse allegations, nor in weighing the significance of those allegations in the context of this case.
[54] Against the foregoing evidence of three highly qualified experts and the lack of expertise in the Director, the Director maintained her position that a further home study was required.
THE APPLICANTS’ EVIDENCE IN RESPONSE TO J.B.’s ALLEGATIONS
[55] In addition to the affidavits of the three expert witnesses, affidavits were filed by the applicants and C.B.’s mother and father, a total of seven witnesses.
[56] The Director did not seek to cross-examine the wife nor C.B.’s parents nor the three experts. Nor did the Director attempt to examine J.B. as a witness on the pending application. The evidence tendered by all seven witnesses was unchallenged.
[57] The cross-examination of C.B. by the Director was brief, being limited to questions concerning when he was first aware of sexual abuse allegations being made by J.B. and to confirm that he did not reveal the fact of the allegations, to the adoption practitioner during the home study interviews.
[58] In his affidavit, C.B. swears that:
No one from the Ministry or the Director has ever provided me with the precise allegations made by my estranged sister, or even any of the allegations. No one from the Ministry or the Director has told me what it is she has even said. No one from the Ministry or the Director has contacted me to inquire of my response, if any, or to tell me what she said and to allow me to respond. To my knowledge, no one from the Ministry or the Director has attempted to contact me. Given the information we have provided in the course of the adoption, I believe our file would include all such contact information.
[59] In addition, C.B. swore that:
I told the adoption practitioner, Mr. Poplack in the course of the home study assessment of the fact:
(a) I and my family believe that [J.B.] suffers from antisocial personality disorder, a form of psychopathy,
(b) [J.B.] is and has been estranged from our family for a number of years,
(c) [J.B.] has not spoken to me for approximately 10 years,
(d) I do believe J.B. to be pathological liar and I believe my parents are of the same view.
[60] That affidavit was sworn November 23, 2008. In a supplementary affidavit sworn December 3, 2008, C.B. reiterates his evidence that he has not received a single written note nor a written communication telling him what he allegedly has done that would cause “all of this misery to my wife and me.” He goes on:
I have not received even a single phone call or oral communication from anyone in charge telling what I have allegedly done. I have not received written or oral communication from those in charge telling what I can do to dispel any concern about me and how to do it. I have fully cooperated with Ms. Poplack and Ms. Stergianis and Dr. Goldstein and Dr. Collins. My estranged sister has not cooperated at all.
[61] It was only after the applicants launched this application that the details of the allegations were revealed to the applicants.
[62] The evidence of M.B., the mother of the husband and J.B., is particularly telling. It is fully concurred with by Mr. K.B., J.B.’s and C.B.’s father.
[63] M.B.’s affidavit was sworn on November 23, 2008. It confirms the lack of information being provided to the applicants and the extended family. She swears that it was her understanding that J.B. sent out an email to numerous adoption practitioners on October 15, 2008, containing unsubstantiated and false claims regarding K.B., C.B. and herself M.B. She states that she learned about the placing of the adoption “on hold” on October 16, 2008. M.B. goes on to say: “If, as it appears to be so, that all of this is because of something that our daughter has said, I need to explain some things about [J.B.].”
[64] J.B.’s mother swears to the following:
As a child, especially in her high school years, J.B. was unable to follow rules, demonstrated an incapacity to abide by any reasonable limits, and developed a pattern of lying and presenting herself in the lies as a victim. For example, if she had not completed her school assignment, she would concoct a story to justify her non-compliance. K.B. and I, were told at one parent/teacher meeting that J.B. had complained to the teachers that the reason her work wasn’t done was because she was being beaten at home. On that occasion, I stayed with the teacher and principal. K.B. went home to bring J.B. back to the school in order to deal with these allegations. When we were all together, J.B. broke down and said she had made it all up. Sadly enough, this became a not atypical event in her teenage years, and it seemed that her breaking down and admitting she lied, and profusely apologizing for it made no difference to her subsequent behaviour.
J.B. was treated in the psychiatric ward at Credit Valley Hospital on two occasions. She was 15 years old on the first occasion when she was a patient there for two weeks. She was 16 years old when a patient there for one week. At the conclusion of second occasion, Dr. Jain, the Chief Psychiatrist at Credit Valley Hospital, advised K.B. and I that J.B. was exhibiting behaviour typical of a psychopath and would do anything she could to bring harm to our family. At a team meeting involving a social worker and psychologist, we learned of their strong suggestion that she be removed from the home, and they would work with her to set her up in a suitable residence. As a result, she left the home in September of 1989, when she was 16 years old.
The summer before, J.B. filed a complaint with the local police department alleging that she was being over-disciplined at home. The police investigated, no charges were laid and, so far as I am aware, their file was closed.
After we told her to move out of our home, we arranged alternative temporary living accommodation for her until an apartment was found. We paid first and last month’s rent for her apartment and continued to assist her financially.
Exhibit “A” is a typewritten summary that I prepared back in 1993 setting out some of the episodes regarding J.B.’s behaviour and our efforts to obtain psychiatric assistance for her, together with my handwritten notes made in 1993 and a summary of monies paid by us to J.B. in 1993. Dr. Jain had suggested that I make notes, and that I not give her cash, only cheques that can form a record of monies given to her.
During 1993 and 1994, we paid for J.B.’s treatment with Dr. William M. Laurie, a psychologist. Attached hereto as Exhibit “B” are copies of some of Dr. Laurie’s Invoices and cheques regarding payments for this treatment. Typically, I would also buy her groceries every Friday and drop them off at her home. I also departed from Dr. Jain’s advice and would give her cash for bus fare, books, school and home supplies.
We paid for J.B. to attend Ryerson for approximately two years, including her room and board, computer equipment, etc.
Attached hereto as Exhibit “C” are copies of cheques regarding monies we gave to J.B. or paid on her behalf during the period 1992 through to 1994.
I have had serious health issues throughout most of my adult life. In approximately 1992, I was diagnosed with a rare genetic illness called Endothelial Dysfunction, which is a collapsing of the arteries surrounding the heart. From July to October 1992, I was in the Intensive Care Unit at Mt. Sinai Hospital.
J.B. came to visit me at the time. When visiting me, she became extremely agitated. She slapped me in the face while I lay in my hospital bed. She then asked me if she was going to get all my fine jewellery when “you drop dead”. I became very upset. My heart monitor alarms went off as a result of the extreme stress I was experiencing. The nurses came rushing in and ordered J.B. to leave immediately. The medical staff decreed, after this event, that she would not be allowed to visit me again unless in the company of her father.
[65] M.B. confirms that she wrote to the Ministry in October 2008, with information similar to that in her affidavit. No one from the Ministry has ever contacted her.
[66] As noted above the affidavit evidence of M.B. is unchallenged. It is significant in several respects.
[67] When J.B. was sixteen the Chief Psychiatrist at Credit Valley Hospital advised K.B. and M.B. that J.B. was exhibiting the behaviour typical of a psychopath and would do anything she could to bring harm to the family. The psychiatrist suggested that M.B. keep notes and not give J.B. cash rather only cheques that could form a record of monies given to her.
[68] Notwithstanding the allegations in the email of J.B., the evidence of M.B. proves conclusively with cancelled cheques that J.B. was supported by her parents following her departure from the family home including by way of monthly payments to her, payment of her tuition at Ryerson and other expenses.
[69] It is also noteworthy that M.B. prepared a summary regarding some of the “episodes regarding J.B.’s behaviour,” in 1993, some 15 years ago, when J.B. was 19 years old. It is significant that she has retained the cancelled cheques all this while and retained the paper summary together with the handwritten notes made in 1993.
EVENTS IMMIDATELY PRIOR TO ALLEGATIONS BEING RAISED BY J.B. ON OCTOBER 15, 2008
[70] As noted, the evidence of C.B. and his parents is that J.B. had been estranged from the family for many years. J.B.’s parents had not seen or heard from her in five years when K.B. received a letter dated August 28, 2008, from J.B. asking him to meet with her.
[71] M.B. and K.B. invited J.B. to their home for dinner on September 27, 2008. It was then that J.B. learned, from a prominently displayed photograph of the adoptive child, about the plans for adoption. According to M.B. and K.B., J.B.’s initial response was “how brave of them to adopt a child.” J.B. told her parents that she was moving to England and that she had met a man who lived there. Knowing that K.B. was born in the UK, J.B. asked for his birth details and their marriage certificate saying that she had a meeting coming up with the British embassy on October 5, 2008 and this information would help her. The parents obliged and gave her their original marriage certificate.
[72] On October 1^st^ or 2^nd,^ J.B. asked K.B. if they could meet again so he invited J.B. to join her parents for Thanksgiving dinner at a restaurant on October 13, 2008.
[73] At that dinner, J.B. told her parents that she wanted them to give her $10,000.00. When they asked why she needed the money, she said she needed $9,000.00 to ship and quarantine her dogs and $1,000.00 for her airfare, to the UK. Before her parents could respond “J.B. become her old self.” She was aggressive and frightened her mother. She told her parents they “owed her” since she had paid for her own education. She then told her parents that if they did not give her the money that she wanted, she “can make it very difficult for C.B. to adopt his China baby.” It was a hostile confrontation.
[74] The dinner hurriedly ended.
[75] The following day, October 14, C.B. found a note on his residence door from J.B. The letter reads as follows:
Dear (C.B.):
As I am sure you know, I had dinner with [K.B.] and [M.B.] last night.
I have concerns about the family situation, and I would like to discuss this and other things with you.
I strongly suggest you contact me before twelve noon tomorrow at (telephone number).
(J.B.)
[76] The evidence of C.B. is that he attempted to reach her without success.
[77] On October 15, 2008, J.B. was in touch with the Ministry, several adoption practitioners and several adoption licensee agencies with her allegations.
[78] It is also noteworthy that although J.B. in her communications with the Director and others in mid-October, indicated that she was getting her medical records and she had requested police records and would be providing them, she has not done so.
STANDARD OF REVIEW
[79] The Director exercises a statutory power of decision.
[80] The applicants are entitled to procedural fairness in the course of their application for adoption. A lack of procedural fairness requires this court to intervene on an application for judicial review.
[81] Decisions of the Director attract a reasonableness standard: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
PROCEDURAL UNFAIRNESS
[82] The Director’s position concerning her role under the Act is that she does not investigate, gather or receive information when exercising the statutory power of a decision to issue a Notice of Approval or Refusal of a Proposed Adoption. Rather, the Director merely receives a report and recommendations from the adoption practitioner and licensee. She acts, one way or the other, based on her consideration of the home study report and recommendation.
[83] There is no provision in the Act which permits the Director to place an application “on hold” once the notice of approval has been issued. Nevertheless, despite this gap in the legislation, it was not unreasonable for the Director to be concerned about the allegations being raised by J.B. and for the Director to have further inquiries made.
[84] I note that the applicants were to board the plane for China 12 days after the allegations were first made by J.B.
[85] Within this context, the Director did the following.
[86] In a rather lengthy telephone call from J.B., the Director received extensive allegations made by J.B., and recorded them. The nature of these allegations was subsequently passed on to other persons in the Ministry in the context of alerting them that they may receive phone calls from a rather upset C.B.
[87] Without affording the applicants an opportunity to present their side of the story to her, the Director made the decision to place the application on hold. This was an exercise of a statutory power of decision. While I appreciate the urgency in the context of the scheduled flight to China, it was without question procedurally unfair to place the application on hold without having afforded the applicants an opportunity to respond. Procedural fairness requires, at a minimum, that a person whose rights are to be affected be given a meaningful opportunity to make submissions and present evidence relevant to the decision to be made.
[88] Furthermore, not only did the Director not give the applicants an opportunity to respond before making her decision, she gave them no information concerning the nature of the allegations and in her communication with the applicants simply gave them advice on the procedures under the statute.
[89] As well as placing the matter on hold, she immediately (on October 16, 2008) notified the C.C.A.A., Citizenship and Immigration Canada, and Children’s Bridge of her decision, again without affording the applicants an opportunity to respond.
[90] As above noted, the applicants have a right to an oral hearing before the Board if the Director gives notice of a refusal or of an approval subject to conditions.
[91] The action of the Director in putting a hold on the application, put the applicants in the position where litigation was their only recourse to have their rights determined. They attempted to obtain a date for a hearing before the Board but the Board refused to give them a hearing in view of the fact that the Director had neither “refused nor approved subject to conditions.”
[92] The Director’s decision of placing the adoption “on hold” was of an indefinite nature and left the applicants in a state of unfair suspension: unable to take the matter to the Board for review and unable to address J.B.’s allegations. The Director’s “decision” therefore foreclosed any ability on the part of the applicants to provide a meaningful response.
REASONABLENESS OF THE DIRECTOR’S DECISION TO INSIST ON A FURTHER HOME STUDY
[93] The Director has taken a position throughout that a further or updated home study was required to deal with the “new information.”
[94] While in some circumstances such a position could be considered reasonable, in the circumstance of this case the decision to keep the application on hold pending a further or updated home study was unreasonable.
[95] It took extensive inquiry, over several weeks, before an adoption practitioner was found to do the update. She withdrew within days after contact with J.B. Further efforts to find an adoption practitioner were fruitless, although on the morning of the hearing in this court, counsel for the respondents indicated that Sandra Forbes of Children’s Bridge would be available. We were given no information as to what the updated home study would comprise, nor the time required to complete it. Indeed, Dr. Clive Chamberlain swore that a further home study was beside the point.
[96] Thus, as things stood when this application was heard, all realistic and reasonable efforts to obtain an updated home study had failed.
[97] In taking the position throughout that an updated home study was required, the Director also took the position that C.B brought this upon himself; he did not disclose to Ms. Poplack that the sexual abuse allegations had been made by J.B. when C.B. was about 18 years old.
[98] Contrary to the position of the Director, C.B. did not act improperly in failing to disclose the allegations. They were investigated at the time by the C.A.S., were found not to be substantiated and no further action was taken.
[99] Furthermore, the personality characteristics of J.B. and her estrangement from the family was raised in some detail by C.B. in the home study interviews, as noted in paragraph [59], above. There is no indication that Ms. Poplack or the Director saw fit to pursue those disclosures with J.B. at the time.
[100] The record contains a barrage of evidence denying the allegations of J.B., with significant documentary evidence to substantiate the denials. All of this evidence was unchallenged.
[101] There is no evidence from J.B.
[102] The Director acknowledges that she is not competent to assess the validity of sexual abuse allegations. The Director also confirms that none of the adoption practitioners involved, nor indeed any adoption practitioner of which she is aware, would have the expertise to assess the validity of sexual abuse allegations.
[103] Thus it may have been inevitable that expert evidence such as that received from Dr. Collins, Dr. Goldstein and Dr. Chamberlain would have been required as part of a proposed home study.
[104] The expert testimony suggests a very low probability of inappropriate behaviour on the part of C.B. Furthermore, even if the allegations of sexual abuse are true, the events occurred during the course of a summer when C.B. was thirteen years of age and J.B. was ten years of age. As noted by Dr. Chamberlain the allegations suggest “immature incestuous activity, not a pedophilic preference or an enduring pattern with prognostic value.”
[105] With this evidence and in the circumstances revealed in these reasons, it was unreasonable for the Director to continue to place a hold on the application.
CONCLUSION
[106] As part of the process in the context of international adoptions, notices and letters are sent to the C.C.A.A., Citizenship and Immigration Canada, and the licensee (in this case the Children’s Bridge).
[107] At the conclusion of the argument the court ordered as follows:
(a) The application for judicial review is granted.
(b) The decision of the Director to place a hold on the approval process, dated October 16, 2008, is quashed.
(c) The Director is ordered to forthwith notify in writing the C.C.A.A., Citizenship and Immigration Canada, and the Children’s Bridge that the temporary hold is no longer in effect.
(d) For clarity, the court orders that the Notice of Approval of the Proposed Adoption dated September 24, 2008, is in full force and effect.
COSTS
[108] If the parties are unable to agree on costs, the applicants shall file written submissions within 10 days of the release of these reasons, the respondents shall have 7 days to respond and the applicants shall have the right of reply within a further 5 days.
Ferrier, J.
Lederman, J.
Swinton, J.
Released: January 30, 2009.
COURT FILE NO.: 584/08
DATE: 20090130
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
C.B. AND D.B.
Applicants
- and -
SHARON GOLLERT, DIRECTOR FOR THE ONTARIO MINISTRY OF COMMUNITY AND SOCIAL SERVICES AND MINISTRY OF CHILDREN AND YOUTH SERVICES, THE HONOURABLE DEB MATHEWS IN HER CAPACITY AS MINISTER OF CHILDREN AND YOUTH SERVICES, CHILD AND FAMILY SERVICES REIVEW BOARD AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Respondents
REASONS FOR JUDGMENT
FERRIER, J.
Released: January 30, 2009.