CITATION: JE and KE v. Children’s Aid Society of the Niagara Region, 2020 ONSC 4239

DIVISIONAL COURT FILE NO.: CVD-HAM-13-20JR

DATE: 20200710

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Penny, Favreau J.J.

BETWEEN:

JE and KE

Applicants

– and –

Children’s Aid Society of the Niagara Region, DC-G and MG, and The Child and Family Services Review Board

Respondents

Donna Wowk for the Applicants

Maggie Scull and Wayne Herter for the Society

Nathalie Fortier for DC-G and MG

Brian Blumenthal and Valerie Crystal for the Board

HEARD: June 23, 2020

Overview

[1] This is an application for judicial review of a decision of a three-person panel of the Child and Family Services Review Board.

[2] These proceedings concern a child who was born on […], 2017. The Children’s Aid Society of the Niagara Region apprehended the Child almost immediately and, on February 6, 2017, placed the Child with approved foster parents, KE and JE (also referred to as the Applicants). In May 2019, the Child was placed in extended Society care with no access. KE and JE applied to the Society to adopt the child.

[3] In the meantime, DC-G and MG (also referred to as the Respondents) also applied to adopt the Child. Neither family had any biological relationship to the Child although DC-G and MG had previously adopted two of the biological mother’s seven children (by different fathers).

[4] The Society approved the application of JE and KE and declined the application of DC-G and MG. The Society regarded the continuity of care and averting the risk of harm from disruption by moving the Child to another family (when there were no care-based reasons for doing so) as the dominant and overriding considerations in this case. DC-G and MG brought proceedings before the Board seeking to review the Society’s decision. The Board reversed the Society’s decision and directed the Society to place the child for adoption with DC-G and MG.

[5] The Applicants, supported by the Society, seek judicial review of the Board’s decision, alleging, among other things, that the Decision is unreasonable and that the Board’s conduct of the hearing was procedurally unfair and that the reasons disclose a reasonable apprehension of bias on the part of this panel of the Board.

[6] The application is opposed by the Respondents. Counsel for the Board, quite properly, took no position on the merits of its Decision but filed a factum dealing with matters of jurisdiction, standard of review and responding to the allegations of reasonable apprehension of bias.

Issues

[7] There are four basic issues before the court on this judicial review:

(1) the standard of review;

(2) whether the Board’s decision to overrule the Society and uproot the Child from the only family she has ever known in order to place the Child with the adoptive parents of two maternal half siblings was reasonable, having regard to:

(a) the justification, transparency and intelligibility of the reasoning used by the Board to reach this result; and

(b) whether the Board’s disposition fell within a range of possible, acceptable outcomes defensible on the facts and the law;

(3) whether the manner in which the Board conducted the hearing was procedurally unfair; and

(4) whether the Board, in its assessment of the evidence and analysis of the issues, disclosed a reasonable apprehension of bias against JE and KE and in favour of DC-G and MG.

[8] With respect to the second ground of judicial review, there were (and remain) five sub-issues in controversy at the hearing:

(i) the views and wishes of the Child;

(ii) the continuity of care and the effect of disrupting the Child’s existing relationship with the Applicants and their family;

(iii) the Child’s potential future relationship with her two half siblings adopted by Respondents;

(iv) the Child’s Métis heritage; and

(v) both families’ religious affiliations and the potential impact of those affiliations on possible issues such as the Child’s future choices about sexual orientation and gender identity.

[9] The applicants brought a motion to introduce new evidence. Although the rules for the introduction of such evidence are somewhat relaxed where the best interests of the child are concerned, this evidence is largely confirmatory of evidence already before the Board and the Court. We do not think the new evidence is necessary to deal with this judicial review.

[10] For the reasons that follow we allow the application for judicial review, grant certiorari and restore the decision of the Society. The Board’s conclusion was unreasonable both because it is not justified, intelligible and transparent in its reasoning and because the result falls outside the range of possible outcomes justified on the facts and the law. On the question of remedy, we are satisfied that there is only one reasonable outcome given the facts of this case and the relevant law – the best interests of the Child require that she not be uprooted from the only family she has ever known. The Child’s best interests would not be served by sending the matter back for a new hearing.

Background

[11] In this background section, I will focus only on background facts relevant to the particular issues that emerged at the hearing before the Board.

[12] It was not contested at the hearing that:

(a) the Child has lived with the Applicants essentially since birth. As of the date of the release of the Board’s decision, therefore, the child had been living with the Applicants for over three years;

(b) the child identifies JE as her father and KE as her mother;

(c) JE and KE have a biological child, E, who is about four years older than the Child. The Child identifies E as her brother and they have a happy, loving relationship;

(d) the Child identifies JE and KE’s extended family as her extended family;

(e) the Child has done exceptionally well and thrived in the Applicant’s care; and

(f) the Child has never met the Respondents or the two older, biological maternal half siblings who were adopted by them.

[13] As noted, the child’s biological mother has six other children fathered by men other than the Child’s biological father. All of the biological mother’s children are either in a kin placement or have been adopted or placed for adoption, two being adopted by the Respondents.

[14] The Child’s biological father died of a drug overdose in May 2018. The biological father had five children in addition to the Child.

[15] The Society’s investigation of the biological father raised the possibility that his paternal grandmother had been associated with Québec Métis. On further enquiry, the paternal grandmother advised the Society that she believed her father had “Indian blood” but this had never been confirmed and her parents were dead.

[16] The Applicants are white, live in Ontario and are members of a Mennonite Brethren church community. The Respondents are also white (being of Irish and Italian heritage) and live in Ontario. They are members of the Roman Catholic church. Neither faith has a particularly open or positive attitude toward LGBTQ issues, although both sets of parents applying to adopt the Child were clear that they would love and support the Child regardless of her eventual sexual/gender preferences.

[17] Neither couple applying to adopt was the subject of any adverse evidence or criticism from the Society regarding the care actually being provided to the children for whom they were responsible. Indeed, in every respect, other than two controversial matters which became the focus of the hearing, both the Applicants, and the Respondents, appear to have been model parents with whom the adopted children (with DC-G and MG) and the foster Child (with JE and KE) have flourished.

The Board’s Decision

[18] The application before the Board was brought by DC-G and MG, challenging the decision of the Society to accept the adoption application of JE and KE and reject the adoption application of DC-G and MG. The Board, therefore, viewed its task under s. 192 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 Sched. 1, as being to decide whether the Society’s decision to refuse the DC-G/MG adoption application was in the Child’s best interest.

[19] The Board cited the test from Family Youth & Child Services of Muskoka v. DM and CM, 2010 ONSC 6018 at para. 21 - that is, the Board must decide what action is in the best interests of the child. Section 192(11) gives the Board broad authority to determine what should be done in the child’s best interests within the confines of the decision/action under review.

[20] The Board identified the three basic criteria in s. 179(2) of the Act which must be considered in determining the best interests of the child:

(1) the views and wishes of the child;

(2) in the case of a First Nations, Inuk or Métis child, the importance of preserving the child’s cultural identity and connection to community; and

(3) any other circumstance of the case that the decision-maker considers relevant, including a number of enumerated factors.

[21] It is not in dispute that the relevant additional (and enumerated) factors were:

(a) the potential for growing up with biological half siblings;

(b) the potential for diversity in sexual orientation, gender identity and gender expression; and

(c) the continuity of care and the risk of emotional harm to the Child by disrupting a placement in which she has been since birth, developed emotional ties to the Applicants and their son, E, and flourished.

[22] The Board found that given the Child’s age and level of maturity, her views and wishes could not be reliably ascertained. The Board rejected as “facile” the argument of KE/JE and the Society (that the Child would obviously want to remain with the only family she had ever known as opposed to being uprooted and placed with a family of total strangers) on the basis that the Child did not know DC-G and MG or her half-sisters.

[23] Because neither family had any Indigenous heritage, the dispute in this case quickly evolved into a contest between the two applicant families over which of these white families was likely to do a better job of fostering Métis culture in the home.

[24] More or less from the outset, the Applicants had taken a number of steps to educate themselves about Métis culture, bought the Child a Métis bracelet and clothing accessories, read books about the Métis culture and attended one or two Métis cultural events. Pending the hearing, they continued to explore additional Métis-related cultural activities. Among other things, they were working with a member of the Métis Nation of Ontario to learn more about Métis culture and how to incorporate it into their lives. At the hearing they also outlined a number of additional steps they would take, such as attending cultural events and other programs provided by the Métis Nation of Ontario, if the Child remained with them.

[25] The Board belittled these efforts and drew an adverse inference that “a number of these activities occurred more recently, after the start of the hearing when it became clear that the Child’s Métis heritage would be an important factor in this hearing, rather than out of a genuine belief that it was essential to foster the child’s Métis heritage and culture.”

[26] In contrast, although the Respondents had done effectively nothing to learn about Métis culture before the hearing, the Board found that DC-G and MG would foster the Child’s Métis heritage because the father of one of their already adopted children was from the Algonquins of Pikwakanagan First Nation and the Respondents had, in the years following their adoption of this child, taken significant steps to foster Algonquin culture and heritage within their home environment.

[27] On the strength of this, the Board found that there was “no doubt” that DC-G and MG would embrace the Child’s Métis culture and heritage and that “the same would not occur” in the home of KE and JE.

[28] The Board considered that the opportunity for biological siblings to grow up together is positive for adopted children, except where there are overriding considerations which militate against an adoptive placement with biological siblings. The Board accepted that the relationship between the Child and E, the biological son of KE and JE, had grown “undoubtedly close, and there are emotional ties between them,” but rejected the importance of this attachment on the basis that “there is a clear and obvious difference between a foster sibling relationship and a biological relationship.”

[29] In addition, the Board concluded that the relationship between the Child and E could be continued even if the Child was removed from the foster parents’ home and placed for adoption with DC-G and MG. “It is,” the Board said, “just a matter of putting the interests and well-being of the child at the forefront.” In this regard, the Board “encouraged” KE and JE to work with DC-G and MG in the future to maintain a relationship with the Child.

[30] The Board considered the potential for the Child’s future choices on sexual orientation, gender identity or gender expression to be relevant because “adoption is for the long term, not the short-term.” Although the Respondents were both Catholic, the Board found that they diverged with the Catholic Church position on sexual orientation etc. and would support their children, whatever the child’s choice about this issue might someday be, without judgment. The Board found that the Applicants would also love and support their children regardless of the child’s choices on this issue. However, the Applicants acknowledged that they did not encourage a gay lifestyle and that, while it was not their place to judge or tell gay people they are wrong, it was the view of their church, which they shared, that it is a sin to engage in a gay lifestyle.

[31] The Board concluded that while the Applicants would continue to love the Child no matter what, it would be more difficult for them to assist her in dealing with her sexual orientation, gender identity or gender expression if she turned out to be other than heterosexual.

[32] The Board made a point of saying that the religious views of the Applicants did not disqualify them in any way from adopting the Child but simply that, as between two competing applications, the approach of the Respondents was more in keeping with her best interests.

[33] The Board acknowledged that continuity of care is a critical consideration in this case since granting the adoption application of DC-G and MG would disrupt what had been a stable and loving situation for the Child for over three years. The Board concluded, however, that other factors “more than counterbalance the question of continuity of care in this case.” Those factors were: a) fostering the Child’s Métis heritage; and b) providing the Child with an opportunity to grow up with her biological half siblings.

[34] In reaching this conclusion, the Board considered whether there was evidence indicating that long-term adverse consequences would result from moving the child from her foster family and found there was no such evidence. The Board also found there was no evidence that the Child would be unable to form an attachment with DC-G and MG. Indeed, the Board relied on findings by the Society in its Home Study of KE and JE that the Child was:

resilient – recovers readily from difficulties

easy-going/upbeat demeanour

good self-esteem

good communication skills good at problem solving/resourceful

imaginative/creative

helpful

sense of humour, respectful to adults

positive relationship with adults/respectful to adults

age-appropriate Judgement and maturity, self-control

responds positively to adult guidance

[35] The Board also cited findings from the Home Study that the Child was an extrovert who demonstrated affectionate behaviours with relatively unfamiliar people, slept and ate well, had positive interactions with her caregivers, was bold, outgoing, happy-go-lucky, likes to make people laugh, likes to be independent and is rarely fearful or timid around new people.

[36] The Board concluded that the strengths and personality traits would serve as “protective factors” that would enable the Child to form a positive relationship with new and different parents which would “no doubt” be facilitated by meeting and being with her sisters. The Board also relied on the so-called “acknowledgement” of the Society’s principal witness during the hearing that research indicated that the neuroplasticity (the ability of the brain to adapt to change) of three-year-old children allows them to form new and enduring attachments with parental figures. The Board noted the Respondents had proven, through their adoption of the Child’s older half sisters, that they could effect a successful transition from foster care.

[37] “Unfortunately,” the Board held, “the child will inevitably suffer emotional distress and confusion as she transitions from the home of [KE and JE] to [DC-G and MG’s] home.” But, the Board opined, DC-G and MG had “the ability to manage the transition” and the impact of this disruptive event would be “mitigated” by growing up in a home with her biological half-sisters and where her Métis heritage is fostered.

Analysis

1. Standard of Review

[38] The parties agree that the applicable standard of review is reasonableness, as recently articulated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. We agree. It is worth reviewing however, some of the guidance offered by the Supreme Court in Vavilov about the application of the reasonableness test.

[39] Reasonableness, of course, finds its starting point in judicial restraint and respects the distinct role of administrative decision-makers. The Vavilov approach focuses on justification and methodological consistency because “reasoned decision-making is the lynchpin of institutional legitimacy” (para. 74). Thus, reasons are the “primary mechanism by which administrative decision makers show that their decisions are reasonable” (para. 81). For this reason, a reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons.

[40] A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker. It is not enough for the outcome of the decision to be justifiable. The decision must also be justified by way of the reasons. An otherwise reasonable outcome cannot stand if it was reached on an improper basis (para.86).

[41] A decision will be unreasonable if the reasons for it fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis. A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken or if the reasons, read in conjunction with the record, do not make it possible to understand the decision-maker’s reasoning on a critical point. Similarly, the reasonableness of a decision may be called into question if the reasons exhibit clear logical fallacies such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise, (paras 103 and 104).

[42] Whether the outcome is justified in light of the legal and factual constraints that bear on the decision-maker involves a consideration of, among other things, the governing statutory scheme, the evidence before the decision-maker and facts of which the decision-maker may take notice, the submissions of the parties, the past practices and decisions of the administrative body, and the potential impact of the decision on the individuals to whom it applies.

2. Was the Board’s Decision Reasonable?

(a) Were the Board’s reasons for its Decision justified, transparent and intelligible?

Legislative Framework

[43] The starting point for any analysis of the Board’s Decision must be the legislation, the Child, Youth and Family Services Act, 2017, which the Society and the Board were bound to follow.

[44] The Preamble to the Act, among other things, acknowledges that:

(a) children are individuals with rights to be respected and voices to be heard;

(b) services provided to children and families should be child-centred;

(c) services provided to children and families should respect their diversity;

(d) First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations; and

(e) honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

[45] The paramount purpose of the Act is to promote the best interests, protection and well-being of children.

[46] Additional purposes of the Act, so long as they are consistent with the best interests, protection and well-being of children, include that:

(a) the least disruptive course of action that is available and is appropriate in a particular case should be considered; and

(b) services to children and young persons should be provided in a manner that:

i. respects a child’s need for continuity of care and for stable relationships within a family and cultural environment;

ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons; and

iii. takes into account a child’s ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression.

[47] Section 179(2) of the Act sets out the specific mandatory and discretionary factors to be considered in the adoption context. It provides:

Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, and

(viii) the effects on the child of delay in the disposition of the case.

[48] It also bears emphasizing, given the Board’s approach to this case, that these mandatory and discretionary factors are not just abstract concepts; the extent of their applicability in a particular case must be rooted in an assessment of the evidence.

Views and Wishes of the Child

[49] The legislation required the Board to consider the views and wishes of the child, giving due weight in accordance with the child’s age and level of maturity, “unless they cannot be ascertained.” The Board concluded that due to the child’s age and maturity her views and wishes “cannot be reliably ascertained.” The Board’s approach conflates two distinct factors: one) the requirement to consider the child’s views and wishes; and, two) the weight to be given to the views and wishes having regard to the child’s age and level of maturity. A further indication of this conflation arises from the introduction of the word “reliably” into the Board’s conclusion. Reliability is a component of the “due weight” to be given the views and wishes, having regard to age and maturity. It does not obviate the need to consider this factor at all. Likewise, the fact that the Child did not know the respondents or her half siblings, while relevant to weight, does not avoid the need to consider this factor.

[50] The Board’s own jurisprudence establishes that a child’s views and wishes are routinely inferred from evidence of the child’s circumstances, PD and DD v. Children’s Aid Society of the District of Thunder Bay, 2019 CFSRB 67 at para. 78. In cases of conflicting evidence, the decision-maker may not be able to ascertain the child’s views and wishes. Here, however, there is no conflicting evidence. The Society gave evidence of the strong bond between the Child and the Applicants and that the Child had flourished in their care during the three years she lived with them. The Applicants and their extended family also gave evidence to similar effect. There was no contrary evidence. It was unreasonable, in light of this evidence, to merely dismiss any attempt to infer the Child’s views and wishes as “facile” because the Child did not know the Respondents and their adopted children. This was beside the point; while relevant to the weight to be given the Child’s views and wishes, it was not a basis to reject an enquiry into those views and wishes altogether.

[51] It is obvious, given the evidence, that the Child would, as submitted by the Society, wish to remain with the only parents and family she had ever known rather than be uprooted and sent to live with strangers. While the weight to be given to this view would have been up to the Board, it was unreasonable not to consider the Child’s view at all.

Métis Heritage

[52] The evidentiary context for this issue is important. While still alive, the biological father identified to the Society that he had some Indigenous background but was not aware of the details. On another occasion he described himself as a “French native” through his mother who grew up in Québec. In her order of May 9, 2019 placing the Child in extended Society care, Martin J. identified the Child as Métis but not affiliated with any specific band or community.

[53] The Society took seriously the father’s self identification as Métis and explained this background to the Applicants, encouraged them to inform themselves about Métis culture and made contact with the Aboriginal Advocate about the Child’s identified heritage. Both the Society and the Applicants gave evidence at the hearing, summarized earlier, about the steps the Applicants had taken to learn about and foster the Child’s Métis heritage in their home.

[54] In its decision, the Board noted that, while the Act does not stipulate that consideration of the Child’s Métis heritage outweighs other considerations, because s. 172(2)(b) sets out, as a standalone, mandatory consideration, the importance of preserving the cultural identities of Indigenous children and because the Preamble to the Act acknowledges the importance of Métis children being grounded in their culture, significant weight must be given to this factor.

[55] The Board concluded that the Society did not give this factor the weight it should have. It appears to have based this conclusion on the finding that “there was very little in the Society’s records to indicate that the [Applicants] would do anything beyond the bare minimum” to foster the Child’s Métis heritage. By contrast, the Board found that the Respondent’s commitment to the Child’s Métis heritage was established by the fact that they had made a significant commitment to promote the Algonquin heritage of one of their older, adopted children.

[56] In our view, the Board’s assessment of this issue was unreasonable for two reasons. First, it is clear, looking at the Decision as a whole, that the Board treated the Métis heritage issue as the preponderant consideration in assessing the competing applications for adoption. To the extent the Board gave, a priori, special weight to this factor in the abstract, the Board lost sight of the paramount purpose of the entire exercise – to promote the best interests, protection and well-being of this particular Child. In Algonquins of Pikwakamagan v. The Children’s Aid Society of the County of Renfrew, 2014 ONCA 646 at para. 67, the Court of Appeal held that nothing in the former Child and Family Services Act suggests that, in assessing the best interests of the child, the weight given to one consideration must be greater than the weight given to another. All factors are considered with the overarching goal of determining the best interests of the child. We are not persuaded that there is any change in this law resulting from the now enacted Child, Youth and Family Services Act, 2017.

[57] Even if, as counsel for the Respondents submits, the recent amendments to the Act had the effect of elevating the Indigenous factor to “super -weighted” status, it is hard to see how that could be determinative here. This is because, unlike many cases involving the custody or adoption of Indigenous children, this case involved competing claims between two white, Ontario families about who would best foster Québec Métis culture if they were approved to adopt the Child. This was not a claim between an applicant with ties to the relevant Indigenous culture and a non-Indigenous applicant with no such ties. The Board gave no consideration to this distinction at all.

[58] Second, while we are bound to defer to the Board’s assessment of credibility and the weight to be given to the evidence, intervention by the reviewing Court is appropriate where the decision-maker applies a stricter standard of scrutiny to the evidence of one party than that used to assess the evidence of another, R. v. Owen, [2001] 3367 (ONCA); R. v. Howe, [2005] 253 (ONCA); and Karkanis v. College of Physicians and Surgeons, 2014 ONSC 7018 (Div. Ct.). Here, the Board fell into the trap of applying a double, or differential, standard in its assessment of the Applicants’ and the Respondents’ evidence, consistently to the disadvantage of the Applicants.

[59] In belittling the Applicants’ efforts to learn about Métis culture as doing the “bare minimum,” the Board ignored the fact that the Respondents, on the evidence, had done effectively nothing prior to the hearing to learn anything about Métis traditions. In contrast, the Board relied exclusively on the Respondents’ prior involvement with Algonquin culture regarding one of their already adopted children. But, the burden of the Act is to recognize the distinct heritage and culture of Aboriginal peoples. First Nations, Inuit and Métis people are distinct peoples and the Board’s decision fails to recognize this, LE v. Simcoe Muskoka Child Youth and Family Services (CFSYA s. 192), 2019 CFSRB 86 at para. 48.

[60] Further and more importantly, the Board failed to consider that the Applicants, as foster parents, were very differently situated than the Respondents as established adoptive parents. With foster parents, a child placed with them is still under the care of the Society; in this situation, the Crown had the right and responsibility of a parent for the purposes of the Child’s care, custody and control, exercised and performed by the Society, Act s. 111(1). The same is not true regarding adoptive parents.

[61] In fact, there is no evidence that the Respondents did anything to foster or even learn about Algonquin culture before their child was placed with them for adoption in 2015. The Respondents’ education and adoption of Algonquin culture appears to have been developed over time after they had adopted their Algonquin-affiliated child. The Board, in taking the approach it did, held the Applicants to a standard that, by its own terms, was not met by the Respondents.

Half Siblings

[62] There is no doubt that the opportunity of biological siblings to grow up together is a positive, enumerated factor to be considered among the “other factors” under s. 179(2). Here again, however, the Board applied a double standard in its assessment of this factor which consistently operated to the detriment of the Applicants.

(i) The Child Had a De Facto “Brother” in the Applicants’ Family

[63] There was uncontested evidence before the Board that the Child had, over the course of three years living with the Applicants, developed a strong bond with the Applicants, their seven-year-old son, E, and the Applicants’ extended family. It was also uncontested that the Child had never met (or knew of the existence of) the Respondents or their adopted children. The Board, however, discounted the Child’s relationship with E because of “a clear and obvious difference between a foster sibling relationship and a biological relationship.” The Board did not provide any explanation of what relevant aspect of this “obvious difference” led it to minimize the Child’s relationship and strong bond with E. Nor did the Board conduct any assessment, rooted in the evidence, of any adverse effects that would presumptively be occasioned by disrupting this relationship balanced against specific benefits that would arise from living with two of her six half siblings. Rather, as with the prior factor, the Board seems to have relied only on the a priori conclusion, in the abstract, that being raised with half siblings would be beneficial.

[64] This approach was in marked contrast to the approach taken in JT and CT v. Windsor-Essex Children’s Aid Society, 2020 CFSRB 9, a case which has remarkable similarities to the case at bar. In JT the child had, over three years, formed strong bonds of trust and attachment to her foster family, including with the foster parents’ two daughters, whom the child identified as “sisters.” The Board held that the child’s community is “broader than her biological half siblings.” Although the applicant foster parents’ two young daughters were not biologically related to the child, they formed “a significant part of her community to whom she has substantial emotional ties” which justified placing her for adoption with the applicant foster parents rather than the parents of the child’s biological half siblings.

(ii) Openness

[65] The Board did, however, conclude that the relationship with E need not be entirely lost. This was on the basis, however, that the Respondents had expressed a willingness to continue a relationship with the Applicants and E following the approval of the Respondents’ adoption application. The Board admonished the Applicants, for their own sake and for E’s sake, to work with the Respondents to maintain a relationship with the Child. The Board did not consider the evidence that, even though the Respondents’ adoptions of the two older children took place in 2015, the Respondents had not reached out to any of the families having care of the other five half siblings by the time of the hearing.

[66] Of even greater significance is that the Board did not mention, let alone examine, the Applicants’ proposal that they, similarly, would be open to developing and maintaining a relationship between the Child and her two adopted half siblings if the Applicants’ adoption application were approved. The evidence of both the Applicants and the Society was that the Applicants would be open to post-adoption access between the Child and her half siblings, including the two half siblings adopted by the Respondents. The Society was satisfied that the Applicants would foster the Child’s relationship with her biological siblings.

[67] The stark contrast between the Board’s assessment of the Respondents’ openness proposal and that of the Applicants’ is further evidence of the Board’s use of a different level of scrutiny for proposals that were, in essence, the mirror image of one another.

[68] Further, the issue of fostering a relationship with biological half siblings was a significant issue at the hearing and in the Board’s conclusion. In the circumstances, the Board’s failure to explain why the relationship with E and with the half siblings could not be adequately preserved by placing the Child with the Applicants and implementing a co-operative openness arrangement between the two families amounted to a failure of justification, transparency and intelligibility and was, therefore, unreasonable.

(iii) Special Needs of the Respondents’ Children

[69] Although the Board placed significant weight on the desirability of placing the Child with half siblings, as noted earlier, the Board cited no evidence to support this particular conclusion beyond the fact of the biological relationship. Rather, the Board largely justified this conclusion by discounting any evidence suggesting a different conclusion. The evidence was that there were concerns about the mental health of one of the half siblings (T) while she was in foster care. Although the Board’s Decision states that T displayed no behavioural issues after six weeks following adoption, this is not borne out by the evidence.

[70] In fact, the evidence, accepted by the Board, was that T was regularly seeing a child psychologist, a communicative disorders assistant/tutor and a registered massage therapist for meditation/breathing therapy. Psychological treatment started due to difficulties T was having with emotional self-regulation. More recently, T was reported as suffering from separation anxiety in relation to her adoptive mother. As a result of T’s separation anxiety, she was sleeping with the Respondents, as was their other, younger child. To facilitate this arrangement, the Respondents added a twin bed to their king-size bed to create an “Emperor” bed in which the whole family was sleeping.

[71] The Board’s approach to this evidence was simply to say that if the Child were (as a result of the disruption caused by removing the Child from her home and family, to be placed for adoption with the Respondent) to need professional psychological help, the Respondents already had access to and were used to dealing with child psychologists and the like. The Board conducted no enquiry into or assessment of the reasons underlying the need for this professional assistance and the implications of placing the Child (in respect of whom there have been no behavioural, psychological or other issues flagged) into a family with at least one special needs child.

[72] The Board also failed to consider the implications of the Respondents’ sleeping arrangements for the arrival of a newly adopted three-year-old, were the Child to be placed with the Respondents. Society policy would preclude the Child from joining her new siblings and parents in the family bed. The Child would therefore almost certainly experience isolation – all in the context of joining a family of strangers.

[73] On this issue as well, therefore, the Board not only continued to use different standards to assess the competing applications, but failed to confront and deal with material contrary evidence and submissions, producing a decision that lacks justification, transparency and intelligibility.

Sexual Orientation/Religious Beliefs

[74] The Applicants’ religious beliefs became a significant focus in this hearing because their church, while accepting of diversity, asserts that sexual relations between members of the same sex is a sin. The Respondents, both Catholic, maintained that they did not agree with their Church’s position on sexual and gender preference issues. Both couples maintained that they would love and support the child no matter what the Child’s orientation might turn out to be. The Board accepted this evidence but held that due to the Applicants’ religious beliefs, it would be more difficult for them to assist the Child with sexual orientation if other than heterosexual. As described earlier, the Board noted that it was not saying that the Applicants’ religious views disqualified them from adopting. Rather, as between two competing applications, the approach of the Respondents was more in keeping with the best interests of the Child.

[75] Both the Applicants and the Society have pointed out in their facta that, by making the tenets of the Applicants’ religion an issue in this proceeding, the Board has in fact said that their religious beliefs do preclude them from adopting a child whenever there is a competing plan by another applicant who does not hold those religious beliefs.

[76] This Child is three. There is no evidence that sexual or gender preference will ever be an issue. Further, delving into this issue necessarily involved guesswork and speculation, for who can know how they will react when their child turns out differently than they hoped or expected or when their child faces unforeseen challenges?

[77] In my view, given the Child's young age, the issue of sexual/gender preference was so tenuous and speculative as to warrant modest to minimal weight. The Board appears to have acknowledged this because, when weighing the applicable factors against the “critical” issue of continuity of care and avoidance of disruption, the Board did not even mention sexual/gender preferences; reference is made by the Board only to the counterbalancing weight to be given to Métis heritage and growing up with half siblings.

[78] Although, unfortunately, a good deal of the hearing seems to have been taken up by an exploration of the Applicants’ religious beliefs, even the Board appears to have discounted the importance of this factor given the Child’s age and other circumstances. For this reason, I do not consider it necessary to comment further on the Board’s analysis of this issue. I would only add that, in the circumstances of this case, the Board was clearly right to assign little to no weight to this factor in its overall assessment of the Child’s best interests.

Continuity of Care/Risk of Harm Due to Disruption

[79] The Board’s conclusion on the continuity of care and the risk of emotional harm from disruption was founded on the following three key points:

(1) continuity of care is a critical consideration in this case (para. 87);

(2) other factors, in particular the “imperative” of fostering Métis heritage and providing the Child with an opportunity to grow up with half siblings, more than counterbalance the question of continuity of care (paras. 88 and 90); and

(3) there was no evidence of long-term adverse consequences or inability to form an attachment with new parents and siblings (para. 89). Indeed, the Child’s positive strengths and personality traits would serve as “protective factors” to get her through the trauma and upset of a re-placement with the Respondents, “no doubt” facilitated by meeting her half siblings (paras. 90 to 93).

[80] There are four inter-related grounds upon which I find that the Board’s conclusion on the issue of continuity of care/risk of harm due to disruption was unreasonable:

(1) the Board treated the issues of Métis culture and growing up with half siblings as “imperatives” which trumped concerns about continuity of care/risk of harm due to disruption;

(2) the Board’s failure to give any reasons for its conclusion that Métis heritage and half siblings would “more than counterbalance” the interruption of this Child’s continuity of care and risk of harm due to disruption;

(3) the Board, once again, used different standards to assess the competing proposals of the Applicants and the Respondents on this issue, consistently to the Applicants’ disadvantage; and

(4) the Board’s use of “reverse reasoning” by focusing on whether the Child could survive or overcome the trauma of being uprooted from her family, rather than focusing on whether there was sufficient reason to impose this trauma and disruption upon her in the first place.

“Imperatives”

[81] In para. 88 of its Decision, the Board said:

We have concluded that other factors – and in particular the imperative of fostering the Child’s Métis heritage and providing her with an opportunity to grow up with her biological siblings – more than counterbalance the question of continuity of care in this case. In so finding, we recognize that emotional well-being derives not only from being in a loving home, but also derives from being in a home where the child’s heritage and culture are honoured and the child has an opportunity not just to know but to grow up with her biological siblings.

[82] The use of the word “imperative” in this passage suggests that a different standard was used to assess the issues of Métis culture and growing up with half siblings than was used to assess the risk of harm due to an interruption in the continuity of care. This, as noted above, is not supported by a proper interpretation of the s. 179(2) factors, whether “consideration” of the factor mandatory or discretionary.

[83] The only “imperative” in s. 179(2) is to “consider” the importance of preserving the Child’s Métis cultural identity and connection to community (clause (b)), in addition to the Child’s views and wishes (clause (a)) and any other relevant circumstances (clause (c)), which may include the enumerated factors in subclauses (i) to (viii)). Importantly, subclause 179(2)(c)(vi) provides for discretionary consideration of the Child’s “relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.” I say “importantly” because, while it is true that the Child’s half siblings are, by legal definition under the Act, her “biological” half siblings, members of the Child’s “community” clearly include the Applicants and their son, E, JT and CT v. Windsor-Essex Children’s Aid Society, paras. 108-109. The Act does not place in any hierarchy or differentiate between relationships and emotional ties to the Child’s half sibling or other members of the child’s “community.” On the evidence in this case, there was no relationship or emotional tie to the Child’s half siblings – she was unaware of and had never met them. The Child had, however, a strong relationship and emotional tie to the Applicants and their son, E. The Board simply discounted this relationship and elevated growing up with the half siblings to the status of an “imperative.” It was unreasonable for the Board to have done so.

Lack of Reasons

[84] The reasons for the Board’s conclusion that the Child’s Métis heritage and growing up with her biological siblings “more than counterbalance” continuity of care and the risk of harm due to disruption are conclusory and essentially tautological. The Board’s reasons on this issue essentially amount to the assertion that heritage and biological sibling factors “more than counterbalance” continuity of care, because heritage and biological siblings more than counterbalance continuity of care.

[85] Whether “other” factors outweighed continuity of care/disruption was the issue in this case. The Board, superficially at least, acknowledged that continuity/disruption was “a critical consideration.” because the Child had thrived in the Applicants’ care for three years (and there were absolutely no care-related reasons for changing this placement). In these circumstances, however, the Applicants and the Child were entitled to expect more. On the evidence, there was little to support interfering with what was, by all accounts in the evidence, a hugely successful, lengthy foster parent placement where, from the outset, the approved foster parents had indicated a desire to adopt the Child. The Board’s failure to provide reasons on the critical issue of why the heritage and half sibling issues “more than counterbalanced” continuity of care/disruption highlights that the conclusion itself lacks justification, transparency and intelligibility and is, therefore, unreasonable.

[86] To the extent any justification for the Board’s conclusion was offered at all, it rested on the Board’s conclusion that: a) there was no evidence that the Child would suffer long-term adverse consequences; and b) the Child’s personality traits would “protect” her from such consequences in any event. That brings me to the last two issues of concern.

Different Standards

[87] The Board was very exacting, even punctilious, about the lack of evidence from the Society and the Applicants to establish harm arising from the decision to deny the Applicants’ application to adopt and approve the Respondents’ and the inevitable disruption of the admittedly warm and loving family life the Child had experienced with the Applicants for essentially her entire life. The Board, however, took a totally different approach to the asserted benefits of heritage and siblings. In the latter case, the Board was prepared to conclude, without the benefit of any evidence, that the Child’s emotional well being required that she be raised in a home where both her heritage and her siblings were present. Put another way (and altogether apart from the fact that the Board, as set out earlier, in our view misapprehended the evidence about the Applicants’ willingness and ability to foster Métis heritage in their home), the Board preferred a priori, abstract concepts unsupported by any evidence over the uncontested evidence that the Child was flourishing in her existing environment. In doing so, the Board once again applied a double, or differential, standard in its assessment of the Applicants’ and the Respondents’ evidence, which was, again, consistently to the disadvantage of the Applicants.

Reverse Reasoning

[88] The Board focused its analysis of continuity of care/harm due to disruption, on whether the Child could survive or overcome the trauma of being uprooted from her existing family without first establishing that there was sufficient reason to disrupt the existing placement at all. Thus in effect, the Board said, the Child has great resiliency and will likely do fine in a new home, so what’s the harm in moving her to a new home

[89] There are at least three problems with this approach. First, as set out above, the Board put the cart before the horse.

[90] Second, the Society had already determined that:

(a) because the Child had developed emotional ties to the Applicants;

(b) because of the importance of continuity of care and the possible effect of disruption on that continuity on the Child; and

(c) in light of the fact that the Child had resided in the same foster home since birth,

it would be in the Child’s best interests to be placed for adoption with the Applicants. The Society’s evidence was that the overriding consideration in its decision was the length of time the Child had been in the Applicants’ care and that the impact of an attachment disruption and an interruption in the continuity of care would create too great a risk to the well-being of the Child. There was no overriding reason to put the child at risk of trauma by moving her to a new home and there was no care-based reason to do so.

[91] Further, the Society’s conclusion was consistent with both common sense and prior Board jurisprudence. In JC and KC v. The Children’s Aid Society of London and Middlesex, 2019 CFSRB 12, the Board accepted expert testimony from Dr. Milton Blake even though Dr. Blake had not met any of the parties or the child who was the subject of the proceeding. According to the Board, Dr. Blake’s testimony “confirmed the prevailing view that to remove a child who is emotionally attached to a family after a certain point is likely to set the child back emotionally to a significant degree… Disruption to [the Child’s] attachment relationships at this stage could induce trauma like symptoms that will have an immediate effect on [the Child’s] well-being” (emphasis added).

[92] Likewise, in AC v. Simcoe Muskoka Child Youth and Family Services, 2019 CFSRB 16, at paras. 64-65, the Board found:

The Child has already found her identity as part of the Applicant’s family, her extended family, and her community relationships. She has routine. She attends daycare, plays at community facilities, and has a home. The Applicant has made concerted efforts to create a cultural identity for the Child and her family with the Métis community. She recognizes the importance of contact with the biological family and is willing to maintain and facilitate this. The younger half sibling and the Child did not know of each other’s existence before June 2018 and they saw each other four times in nine months. The Child has a foster sibling she has known since birth and sees daily. A relationship can still develop between the younger half sibling and the Child without taking the Child away from the only family she has ever known.

[93] Third, while there was no direct evidence that there would be long-term harm, there was no evidence that there would not be such harm either. The Society’s evidence was that an interruption in the continuity of the Child’s care would create too great a risk for the Child’s well-being.

[94] The Board essentially created evidence of lack of harm out of:

(a) inferences it chose to draw from evidence that the Child was emotionally healthy and resilient; and

(b) the panel members’ apparent familiarity with research on trauma suggesting that brain development in the early years, because of “neuroplasticity,” makes it possible for the formation of new attachments fairly readily if the right conditions and circumstances are in place. While Ms. Bernard acknowledged being aware of this research, she qualified the premise asserted by the Board by stipulating that resiliency can be “built on that one person in your life and that person in the Child’s life right now would be” the Applicants.

[95] There is a legal distinction between speculation and drawing inferences from the circumstantial and direct evidence on the record. The trier of fact is permitted to do the latter, but not the former. In this context, “speculation” is the drawing of an inference in the absence of any evidence to support that inference or in situations where the inference is unreasonable - for example, where the inference does not logically and rationally follow from the proven fact. Drawing inferences based on an “educated guess” is speculation. If the inference drawn is reasonable, however, a reviewing court should not intervene just because other inferences (even arguably better inferences) could also have been drawn, see, for example, Walton v. Alberta (Securities Commission), 2014 ABCA 273 at paras. 26-27.

[96] Is it reasonable to infer that because the Child (having lived exclusively with the Applicants) is emotionally healthy and resilient, she will not suffer material harm if her family placement is disrupted and she is placed with a family of strangers? In my view it is not. This is not simply a question of whether the Board’s inference is the best or a less likely inference. It is a question of whether the proposed inference can logically and rationally follow from the proven fact at all. In my view it cannot. There is simply too large an evidentiary gap. The Board’s attempt to fill that gap was, at best, an educated guess and, therefore, speculation.

[97] In addition, the inference sought to be drawn by the Board was not based on a consideration of the totality of the evidence, including any competing inferences. For example, the Board did not even advert to the possibility that, as suggested to the Board in Ms. Bernard’s evidence, the reason for the Child’s emotional well-being and resilience was because the Applicants had provided her with such a loving and supportive family environment. Thus, the very thing that suggests there is no need to change the Child’s placement is used by the Board to justify that change. Even if the inference sought to be drawn were a possible inference on the evidence, therefore, the Board’s reasoning – the basis upon which it found this to be the most appropriate inference in all the circumstances – was not disclosed. This was a failure of justification, transparency and intelligibility, rendering the Board’s Decision on this issue unreasonable.

[98] It is also hard to see how the board’s a priori knowledge of the theory of child neuroplasticity could be of any use in this case, given that even the Board’s account of this theory went no further than to suggest reattachment was “possible” if the right conditions were in place to transition a child from one home to another. The Board certainly formed the view that the Respondents had the ability to manage the transition and there was evidence to support that view. The problem is that, as set out above, there was no real evidence of the Child’s ability to manage the transition or how to weigh the uncertainties and risks associated with that outcome against the benefits of imposing the change.

[99] There is, in my view, much to be said for the proposition set out in the Applicants’ factum at para. 65:

In assessing continuity of care individual circumstances must be considered. While placement with biological siblings could be beneficial in many cases, the Child does not have any relationship with the half siblings in this case. She has been placed in the same home since birth and has established an identity with the applicants, her family and her community. The Child should not be the subject of an experiment or gamble as to whether or not she would be able to ‘survive’ unscathed the monumental uprooting and disruption of her entire life when there is no good reason for it.

(b) Did the Board’s decision fall within the range of acceptable outcomes which are justified in light of the legal and factual constraints applicable in this case?

[100] The governing statutory scheme, how that statutory scheme is to be properly interpreted, the evidence before the Board, the submissions of the parties, relevant past practices and decisions of the Board and the potential impact of the Decision on the Child have all been reviewed in some detail in the previous section of these reasons.

[101] The paramount consideration is the best interests of this child. The “imperative” associated with Indigenous heritage is that it be considered. There is no “imperative” associated with biological half siblings and there was no justification offered for why that consideration, in respect of half siblings the Child had never met, should trump the Child’s relationship with her de facto sibling in the home of her foster parents. On critical issues, the Board’s focus seems to have been on abstract notions of what may be in children’s best interests generally, relying on the factors which the Act requires, or suggests, be considered.

[102] A reasonable decision is one that is justified in light of the facts. Here, the Board fundamentally misapprehended or failed to account for significant evidence that was before it. The Board, on a number of important issues, applied a different standard of assessment to the evidence of the Respondents than it applied to the evidence of the Applicants, consistently to the Applicants’ detriment.

[103] The Board ignored or failed to deal with relevant decisions of the Board in prior cases which lent significant support to the Applicants’ argument. Here, the impact of the Board’s decision on the Child’s rights and interests is severe. The reasons provided do not reflect those stakes. The Board failed to explain why its decision best reflected the Legislature’s intention. The Board’s reasons do not demonstrate that it truly considered the consequences of its Decision nor do they justify those consequences in light of the evidence and the applicable law.

[104] For these reasons, we have concluded that the outcome reached by the Board is not justified in light of the legal and factual constraints that properly bear upon it.

3. Was there procedural unfairness?

[105] The Applicants argue that the hearing before the Board was procedurally unfair because the Board imposed timelines on the delivery of materials and time limits on opening statements and viva voce evidence.

[106] Given the finding that the Decision was unreasonable, it is not necessary to decide the issue of procedural fairness.

[107] Nevertheless, we would have found that the hearing was procedurally fair. Administrative tribunals are entitled to control their own processes. They are also meant to hear matters in an efficient and expeditious manner.

[108] Other than raising general concerns about the time limits imposed by the Board, the Applicants have not identified specific issues or evidence that they were not able to address at the hearing that had a negative impact on the outcome. In addition, they did not raise these objections or seek an adjournment of the hearing before the Board. In the circumstances, we do not find that the hearing was procedurally unfair.

4. Was there a reasonable apprehension of bias?

[109] The Applicant and the Society argue that the panel was biased. The Society focused on this argument during the hearing. Its argument was that the Board’s unbalanced approach to the evidence amounted to bias.

[110] As reviewed above, we found that the Decision was unreasonable, in part, due to the Board’s lack of balance in its approach to the evidence. We therefore do not need to decide whether this also amounts to a reasonable apprehension of bias.

5. What is the appropriate remedy?

[111] The Applicants argue that, if we grant the application for judicial review, we should grant an order quashing the Board’s decision and confirming the Society’s adoption decision without referring the issue back to the Board. The Respondents argue that, if the decision is quashed, the matter should be remitted back to the Board.

[112] In Vavilov, at para. 141, the majority of the Supreme Court emphasized that, in the normal course, where a matter has been reviewed on a reasonableness standard, the case should be remitted to the original decision maker to be decided afresh in accordance with a court’s reasons. However, at para. 142, the majority stated that sending the matter back may not be appropriate or necessary in a number of circumstances:

However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended: D’Errico v. Canada (Attorney General), 2014 FCA 95, at paras. 18-19. An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose … Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed: see MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6, at paras. 45-51; Alberta Teachers, at para. 55.

[113] In this case, we find that there is no utility in sending the matter back to the Board because, in our view, the result is inevitable. In addition, given the issues at stake, there are sufficient concerns over the need for a timely decision on the Child’s final placement to warrant avoiding a further hearing before the Board.

[114] As reviewed above, we found that the Board’s decision was unreasonable on many grounds. The Board’s task was to weigh different factors to determine which adoption plan was in the Child’s best interests. In our view, based on the evidence before the Board, including the Board’s conclusions that the Child is thriving in her current family setting, there is only one reasonable conclusion to be reached about the Child’s best interests. The only justification for removing her from her current family would have been if the other factors considered by the Board legitimately weighed heavily in favour of her best interests. But, as reviewed above, the Board’s assessment of all factors, except for the positive aspects of her current setting, were largely speculative or abstract.

[115] Given the primacy of the Child’s best interests, when weighing what is known about the Child’s current circumstances against speculation or abstraction about what would happen if she moved to a different family, we see only one possible outcome and we find that this is one of those rare cases in which it is appropriate to order that the application be allowed and that the matter not be remitted back to the Board. Rather, the Society’s decision that the Applicants be permitted to adopt the Child should be confirmed.

[116] In making this order, we also note that, by its nature, a case involving the permanent placement of child is a pressing issue that requires an expeditious resolution. There is a pressing need for finality in these proceedings and certainty for the Child’s future. This is consistent with respect for the best interests of the Child.

[117] In addition, both families have committed to fostering a relationship between the Child and her half sisters regardless of who ends up adopting the Child. Minimizing further acrimony between the parties will help with this process and is in the Child’s best interests.

[118] Accordingly, having found that the Board’s Decision is unreasonable we would normally remit this matter back to be decided in accordance with these reasons. However, we find that this is one of those rare cases in which the Board’s decision should be quashed and the Society’s adoption decision confirmed.

Conclusion

[119] For the reasons above, the application for judicial review is granted, the Decision of the Board is quashed and the Society’s decision that the Child be adopted by the Applicants is confirmed.

[120] As agreed between the parties, no costs are awarded.

Backhouse J.

Penny J.

Favreau J.

Released: July 10, 2020

CITATION: JE and KE v. Children’s Aid Society of the Niagara Region, 2020 ONSC 4239

DIVISIONAL COURT FILE NO.: CVD-HAM-13-20JR

DATE: 20200710

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Penny, Favreau J.J.

BETWEEN:

JE and KE

Applicants

– and –

Children’s Aid Society of the Niagara Region, DC-G and MG, and The Child and Family Services Review Board

Respondents

REASONS FOR JUDGMENT

Released: July 10, 2020