Court File and Parties
DIVISION COURT FILE NO.: DC-20-150 COURT FILE NO.: FS-20-20595 DATE: 20200316 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Windsor-Essex Children’s Aid Society Applicant – and – J.T. and C.T. Respondents
Counsel: Ronald Burnett, for the Applicant Caitlin Zeran, for the Respondent
HEARD: January 24, 2020 and February 25, 2020 with subsequent written submissions
Corrected Decision: Paragraphs 28 and 29 of the original decision was corrected on March 16, 2020 and the description of the correction is appended.
KING j.
Introduction
[1] This is an application by the Windsor-Essex Children’s Aid Society (“WECAS”) to extend a stay of the order of the Child and Family Services Review Board (“Board”) made on January 7, 2020, with reasons released on February 3, 2020 pending an appeal of its decision to the Divisional Court by WECAS. I am sitting as a single judge of the Divisional Court on this application pursuant to s. 6 of the Judicial Review Procedures Act, R.S.O., c. J.1 and other related provisions.
Background
[2] J.T. and C.T. were the foster parents of S.G. (or “the Child”) (d.o.b. […], 2015) from October 16, 2016 to September 17, 2019. She was placed in their custody following her removal from her birthmother’s care.
[3] S.G. is the youngest of four children sharing the same birthmother. She does not share a common birthfather with any of the other three children.
[4] Upon removal from the birthmother’s care, the children were placed in three different foster homes.
[5] In May 2019, WECAS made a decision between competing adoption plans respecting S.G. One of the proposed plans was put forward by J.T. and C.T., the respondents in this matter. The other plan was put forward by R.H. and A.H. They had been the foster parents of the Child’s half-brother. The plan of J.T. and C.T. was later amended to include the Child’s half-sister.
[6] J.T. and C.T. did not originally express an intention to adopt the half-brother of S.G. because they knew he was in a long-term foster placement with R.H. and A.H. The plan of R.H. and A.H. always included an intention to adopt S.G., her half-brother and her half-sister.
[7] WECAS decided to accept the proposed plan of R.H. and A.H. to adopt the three siblings together. As a result, S.G. was removed from the home of J.T. and C.T. and placed in the care of R.H. and A.H. in September 2019.
[8] Following the Child’s removal in September 2019, J.T. and C.T. filed an application with the Board for review of the adoption decision. The hearing on the merits took place in Windsor on December 10, 11, 18, and 19, 2019 and January 2, 2020. The Board released an order on January 7, 2020 with reasons to follow.
[9] The January 7, 2020 order directed WECAS to return the Child to the home of J.T. and C.T. forthwith and no later than January 14, 2020. The order also rescinded WECAS’s adoption decision and directed the Child be placed on adoption probation with J.T. and C.T. as soon as she was returned to their home.
[10] On January 14, 2020, WECAS brought a motion before this court requesting the Board’s January 7, 2020 order be stayed pending receipt of the reasons for decision. The motion was considered by Howard J. in chambers on January 14, 2020. He determined the question of the stay should be decided in open motions court on January 17, 2020 to permit notice to relevant parties and the filing of a further and better affidavit. The January 14, 2020 endorsement also provided an interim interim stay of the Board’s order, on a without prejudice basis, until January 17, 2020, or further order of the court.
[11] On January 17, 2020, the motion was adjourned on consent to January 24, 2020 to permit J.T. and C.T. to file responding materials. Pending the hearing of the motion, the interim interim without prejudice stay of the Board’s order continued.
[12] The matter came before me on January 24, 2020 and the parties made submissions without the benefit of the decision of the Board. Recognizing that it would be difficult, if not impossible, to fairly determine the motion without those reasons, I reserved my decision at that time but indicated the court may need to hear further from the parties should the Board decision be released.
[13] The Board’s reasons for its January 7, 2020 order were released February 3, 2020. The parties appeared again on February 25, 2020 and it was confirmed counsel would make further submissions in writing in response to those reasons. Thereafter, the submissions of counsel were submitted in writing.
[14] S.G. has remained in the care of R.H. and A.H. throughout this process.
[15] For the reasons that follow, I am dismissing the application of WECAS to stay the decision of the Board pending the Divisional Court decision.
Summary of the Board’s Reasons for the January 7, 2020 Order released February 3, 2020
[16] In its February 3, 2020 reasons, the Board outlined the background of the proceeding, including the following:
i) The introduction of S.G. into the foster care system in October 2016; ii) her contract with her biological siblings while in the care of J.T. and C.T.; iii) the two families and their competing adoption proposals; and iv) what occurred following WECAS’s decision to approve the adoption proposal of R.H. and A.H.
[17] In reaching its decision, the Board considered the factors outlined in s. 179(2) of the Child Youth and Family Services Act, 2017, S.O. 2017, c. 14. Those factors led the Board to make the following conclusions:
As per the Child’s physical, mental and emotional needs, and the appropriate care or treatment to those needs, and the Child’s physical, mental and emotional level of development: J.T. and C.T. were better suited to meet those needs than R.H. and A.H. Specifically, the Board indicated, at para. 72, “R.H. did not display an awareness of or sensitivity to the Child’s emotional needs.” In contrast, the Board found at para. 84, that J.T. and C.T. “…have a greater sensitivity to and understanding of children’s needs in general and the Child’s needs in particular. This is especially evident with respect to the Child’s emotional needs.”
As per the Child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, and the child’s cultural and linguistic heritage: The Board concluded that J.T. and C.T. were also better suited to meet the Child’s needs on this factor. The Child is biracial with Caucasian and Jamaican heritage. C.T. took initiative to learn how to care for the Child’s hair. R.H. indicated they gave the Child books about her heritage but admitted he had never read the books himself.
As per the importance for the Child’s development of a relationship with a parent and a secure place as a member of a family: The Board found, at para. 88, that the Child developed a strong relationship with J.T. and C.T. and was part of their family. She called them “mom” and “poppa” and became close to their daughters. In contrast, the Board was very concerned about the position of R.H. and A.H. that, if they could no longer adopt the Child, they would not carry through with plans to adopt the other siblings. The Board found that although the Child’s relationship with R.H. and A.H. was developing, it did not have the same strong foundation as with J.T. and C.T.
As per 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: The Board was of the opinion that the Child’s community was broader than just her biological siblings, and consideration should be given to the Child’s relationships with those she formed bonds with while in the care of J.T. and C.T. The Child described J.T. and C.T.’s daughters as her sisters. J.T. and C.T. have parented the Child for most of her life. J.T. and C.T. gave evidence that they would maintain the relationship the Child has with her biological siblings. At para. 115, the Board stated, “While living in the same household with them might be ideal, we find that adoption by the R.H. and A.H. is not in the Child’s best interests. As a result, other ways must be found to maintain those connections…”
As per the importance of continuity in the Child’s care and the possible effect on the Child of disruption of that continuity: The Board accepted evidence that the transition from the home of J.T. and C.T. to the home of R.H. and A.H. was traumatic for the Child. The Board concluded that the Child’s return to J.T. and C.T. posed the best chance for long term continuity of care.
[18] Based on all of the above considerations, the Board concluded it was in the Child’s best interests to be returned to the care of and eventually adopted by J.T. and C.T.
Positions of the Parties
Submissions of the Applicant, WECAS
[19] The submissions of WECAS are focused on the shortcomings of the Board’s decision and the lack of record available to permit meaningful review of the Board’s conclusions.
[20] The written submissions of WECAS begin by offering a different view of the competing adoption plans than what was accepted by the Board. WECAS rejects that J.T. and C.T. did not include the Child’s half-brother in their adoption plan because he was in a long-term foster placement with R.H. and A.H. Instead, WECAS submits J.T. and C.T. never wanted the Child’s half brother to attend access at their home (page 1, para. 4). WECAS agrees the adoption plan of R.H. and A.H. was to adopt the Child, her half-brother and her half-sister from the beginning. WECAS does not explain why it is of the opinion that J.T. and C.T. never wanted the Child’s half-brother to attend access visits at their home.
[21] WECAS disagrees with the Board’s finding that the home of J.T. and C.T. is the only home the Child has ever known. Through access visits with their mother, WECAS submits the Child has grown to know her biological siblings (page 1, paras. 6-7).
[22] WECAS submits the Child’s transition from the home of J.T. and C.T. to the home of R.H. and A.H. was positive. WECAS points out that the Board acknowledged this and disagrees with the Board’s ultimate finding that the transition was traumatic (page 2, para. 4).
[23] WECAS submits that the Board’s determination of the Child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, and the Child’s physical, mental and emotional level of development was based on an incomplete analysis of the evidence (page 2, para. 7). WECAS acknowledges the Board preferred the evidence of J.T. and C.T. on this issue but does not agree with this preference.
[24] WECAS strongly disagrees with the negative findings of the Board in relation to adoption worker Paula White (page 3, para. 3). WECAS refers to the adoption worker as “a very senior Adoption worker having close to 30 years of experience and having provided evidence related to adoption feasibility over an extensive number of years during which she was consistently qualified as an expert.” WECAS disagrees with the conclusions of the Board in relation to this adoption worker. WECAS submits the record does not permit a review of why the Board made these conclusions.
[25] WECAS disagrees with the Board’s concern over whether R.H. and A.H. would continue with adoption of the remainder of the siblings if the Child was placed in another home. WECAS submits that R.H. and A.H. took this position because of their belief that the siblings should be kept together and that it would be hard on the Child’s half-brother in their care to be adopted apart from his sisters (page 6, para. 2). WECAS submits the Board misinterpreted the position of R.H. and A.H. on this issue.
[26] WECAS also submits the Board incorrectly found that the Child’s behavioural issues began due to the transition to the home of R.H. and A.H. WECAS submits there was evidence the Child had behavioural issues before the transition (page 6, para. 2). WECAS further submits that, contrary to the Board’s findings, C.T. made the transition process more difficult than it needed to be by enrolling the Child in extracurricular activities and not allowing her belongings to be transferred to the home of R.H. and A.H. (page 6, para. 2).
[27] WECAS submits the Board was incorrect in finding that there was no evidence of any efforts by R.H. and A.H. to engage with the culture of the Child (page 7, para 3).
[28] In response to the Board drawing a negative inference from A.H.’s decision to go on a trip with her mother shortly after the Child was transitioned into her home, WECAS indicates the Board failed to make reference to C.T.’s decision to go to Las Vegas after her oldest daughter expressed suicidal thoughts on two occasions and was receiving treatment in Michigan (page 8, para 5). This is the information referenced in the letter from Caitlin Zeran (lawyer for J.T. and C.T.) to Ronald Burnett as “information not presently before the court”. The submissions of WECAS indicate this is detailed in Exhibit No. 26.
[29] The submissions of WECAS also make reference to a disclosure by a biological child of J.T. and C.T. that his mother hit him with a belt. The above-referenced letter from Caitlin Zeran also refers to this as “information not presently before the court”. WECAS questions why this information was not of concern to the Board (page 11, para. 1).
[30] WECAS disagrees with the Board’s conclusion that leaving the Child in the care of A.H. and R.H. would create greater potential for disruption of care (page 11, para 2).
[31] WECAS requests an extension of the stay be granted to ensure the least future disruption to the child.
Submissions of the Respondents, J.T. and C.T.
[32] The written submissions on behalf of J.T. and C.T. defer to the Board’s reasons for why it is in the Child’s best interests for her to be returned to their home.
[33] J.T. and C.T. submit that the errors committed by WECAS were properly identified in the reasons of the Board. These errors include improper notice resulting in the inappropriate removal of the Child from the home as well as improper disclosure to J.T. and C.T. throughout the hearing before the Board.
[34] J.T. and C.T. submit that the ultimate determination of the Board was based on the best interests of the child test. This issue was “very thoroughly reviewed [by the Board] in its reasons” (page 3, para. 2) and J.T. and C.T. agree with the Board’s findings respecting the best interests of S.G.
[35] They also agree with the Board decision on the following points:
- Transition back to their home will be easier for S.G. than transition to a new home because she has spent the majority of her life in their care (page 6, para. 1).
- The delay in the disposition of this case has impacted the Child. The case has been drawn out unnecessarily by WECAS. After a five-day hearing, a competent and qualified Board determined that the best thing for the Child is for her to be returned to the family that she has known for most of her short life. This reunion has been deferred for far too long now. It is unjust to continue to allow the Child to be kept from the only family she has ever known. (page 6, para. 2.)
[36] Counsel for J.T. and C.T. also requested the court disregard the submissions of WECAS regarding C.T.’s trip to Las Vegas following her daughter’s expression of suicidal thoughts and the incident with their biological son. Counsel argues that, as I requested submissions on the decision of the Board and this information is not within the reasons of the Board, reference to them is inappropriate and beyond the scope of what was requested of counsel.
Reply Submissions of WECAS
[37] The Board clearly stated in its reasons that the procedural errors made by WECAS in respect of notice and disclosure were not given any weight in the Board’s decision. It is submitted that the submissions of J.T. and C.T. are therefore unhelpful on this issue.
[38] WECAS repeated its disagreement with the Board’s finding that the Child suffered trauma from the transition to the home of A.H. and R.H., as this finding was based on the “self-serving” testimony of J.T. and the Board should not have accepted it.
[39] WECAS submits that the Board failed to acknowledge and/or give appropriate weight to certain evidence before it and so the references to C.T.’s trip to Las Vegas and the belt incident with their biological child were not inappropriately referenced. Both pieces of information were evidence before the Board. Judicial/Appellate Review could not occur if parties were prohibited from making reference to evidence before the decision-maker.
Analysis
[40] The only issue before the court at this stage is whether the stay of the order of the Board requiring the return of the Child to J.T. and C.T. should be extended pending review.
[41] The standard of review to be applied on judicial review of a decision of the Child and Family Services Review Board was considered by the Divisional Court in Family, Youth & Child Services of Muskoka v. M. (D.), 2010 ONSC 6018 (Div. Ct.). The Court concluded that the appropriate standard of review is reasonableness based on the Supreme Court of Canada’s decision in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190. [emphasis added]
[42] In Dunsmuir, the Supreme Court of Canada determined that reasonableness generally applies to questions of fact, discretion and policy, and questions of mixed law and fact where the issues of law and fact cannot be easily separated (paras. 51 and 53).
[43] Furthermore, deference will usually be owed where the decision-maker is applying its home statute or a statute “closely connected to its function, with which it will have particular familiarity” (para. 54). Based on this guidance, the specific expertise of the Board in considering the best interests of a child should be given deference.
[44] At para. 47 of Dunsmuir, the Supreme Court stated:
In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[45] While WECAS will have the opportunity to satisfy the Divisional Court reviewing the decision of the Board that it was not within a range of possible, acceptable outcomes defensible in respect of the facts and law, it is clear that deference will be afforded to the Board.
[46] While not deciding the application for judicial review, on my reading of the Board’s written decision dated February 3. 2020, I have concluded that it is questionable that WECAS will be able to satisfy the reviewing court that interference with the decision of the Board is warranted.
[47] I have also considered the three-stage test from Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, as referred to in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 a p. 334, that courts are to apply when considering an application for either a stay or an interlocutory injunction:
First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
[48] Taking into consideration my uncertainty with respect to whether WECAS will be able to demonstrate the Board’s decision was unreasonable, it is clear that J.T. and C.T. would suffer greater irreparable harm if the stay was granted. Perhaps more importantly, the Child would also suffer irreparable harm if her return to J.T. and C.T. were further delayed in the circumstances.
[49] For these reasons, I have concluded that the application for a stay should not be granted. The motion filed by WECAS dated January 14, 2020 seeking an order staying the decision of the Child and Family Services Review Board made on January 7, 2020 (with reasons released in writing on February 3, 2020) is dismissed.
Order
[50] WECAS is directed to deliver S.G. to the care of J.T. and C.T. as soon as practically possible, but in any event no later than 4:00 p.m. on Thursday, March 19, 2020. Those arrangements are to be arranged between the parties. However, under no circumstances should J.T. and/or C.T. be in personal and/or oral contact with R.H. and/or A.H. in this respect. Any information regarding the care of S.G. (such as medication instructions, medical appointments or other activities) should be communicated to the WECAS and then provided to J.T./C.T.
[51] While I expect that R.H. and A.H. will fully co-operate with WECAS in this respect despite their likely disappointment with this decision, they are directed not to take any actions to that would impede or in any way delay WECAS from complying with this order.
[52] To ensure a smooth transition, all involved parties are directed to refrain from making negative comments to S.G. (or any of the children remaining under the care of R.H. and A.H.), regarding the other parties, WECAS, or any possible future outcomes/strategies in this matter.
[53] I realize this decision is being released at an extremely difficult time for everyone in our society with the current threat of the COVID-19 virus and the myriad of related issues that have significantly altered our society. To that end, I will remain seized with respect to the implementation of this order. Without limiting the generality of that provision, in the event S.G. cannot be delivered to J.T. and C.T. within that timeline, any party can arrange for a tele-conference with me by contacting the trial co-ordinator via email.
Costs
[54] In the event that the parties are unable to agree on costs within thirty (30) days, then costs submissions shall be in writing on the following basis.
[55] Counsel for J.T. and C.T. shall serve costs submissions and a “Cost Outline” as provided for in Rule 57.01(6) of the Rules of Civil Procedure (using Form 57(b)) upon the WECAS’s counsel within thirty (30) days. Such written argument shall be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, the respondents shall be deemed to have waived their right to do so.
[56] Counsel for Windsor-Essex Children’s Aid Society shall have ten (10) days to provide a response to counsel for the respondents. Such response is to be no more than three (3) pages in length. In the event the foregoing is not complied with within that time period, the applicants shall be deemed to have waived their right to do so.
[57] Counsel for the respondents shall have five (5) further days to provide a reply to counsel for the applicant. Such reply is to be no more than one (1) page in length. In the event the same is not complied with within that time period, the respondents shall be deemed to have waived their right to do so.
[58] Once all of those steps have been completed, counsel for the respondents shall provide all the submissions to the court through Trial Co-ordination.
[59] All references to the length of submissions exclude Bills of Costs, Costs Outlines, and any relevant Offers to Settle.
Addendum
[60] In a world where many, many children do not enjoy the love, care, compassion and guidance of anyone, it is wonderful for S.G. that she has had contact with two excellent sets of parental figures who both wish to care for her into adulthood. One would hope that all children who do not have even a single biological parent available (or capable of properly caring for them) should be in such a situation. If so, the world would surely be a better place.
[61] For this reason, I want to emphasize that nothing in this decision is based on any assessment of the parenting skills, dedication or actions of R.H. and A.H. They are to be complemented on their efforts. As WECAS has acknowledged, this was a decision between “two highly committed couples” in which “[t]here is no nice answer.”
“original signed and released by King J. ” George W. King Justice Released: March 16, 2020 Corrected Released: March 16, 2020
Corrected Decision
Correction to the second sentence in paragraph [28]
Paragraph 28 previously read:
This is the information referenced in the letter from Cairlin Zeran (lawyer for J.T. and C.T.) to Ronald Burnett as “information not presently before the court”.
Paragraph 28 now reads:
This is the information referenced in the letter from Caitlin Zeran (lawyer for J.T. and C.T.) to Ronald Burnett as “information not presently before the court”.
Correction to the second sentence in paragraph [29]
Paragraph 29 previously read:
The above-referenced letter from Cairlin Zeran also refers to this as “information not presently before the court”.
Paragraph 29 now reads:
The above-referenced letter from Caitlin Zeran also refers to this as “information not presently before the court”.
DIVISIONAL COURT FILE NO.: DC-20-150 COURT FILE NO.: FS-20-20595 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Windsor-Essex Children’s Aid Society Applicant – and – J.T. and C.T. Respondents ruling on application King J. Released: March 16, 2020 Corrected Released : March 16, 2020