T.G. v. Nova Scotia (Community Services)., 2011 NSSC 497

Editor ’ s Note : Erratum released February 5, 2011. Original judgment has been corrected, with text of erratum appended. SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: T.G. v. Nova Scotia (Community Services)., 2011 NSSC 497 Date: 20111205 Docket: SFHCIV-076405 Registry: Halifax Between: T. G . Applicant/Petitioner v. M. C. S. and R. C. Respondent LIBRARY HEADING Judge: The Honourable Justice R. James Williams Heard: September 21, 22 and October 7, 2011 in Halifax, Nova Scotia Oral Decision: December 5, 2011 Edited for Release: January 20, 2012 Keywords: Judicial Review of Minister of Community Services Choice of Adoption Placement for Child, R.J.

Legislation: Children and Family Services Act

Summary: Decision quashed. Directions given for process for adoption placement decision. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: T.G. v. Nova Scotia (Community Services), 2011 NSSC 497 Date: 20111205 Docket: SFHCIV-076405 Registry: Halifax Between: T.G. Applicant v. Nova Scotia (Minister of Community Services) (M.C.S.) and R.C. Respondents Editorial Notice Identifying information has been removed from this electronic version of the judgment.

Restriction on publication: Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides:

"No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or relative of the child." Judge: The Honourable Justice R. James Williams Oral Decision: December 5, 2011, in Halifax, Nova Scotia Edited for Release: January 20, 2012 Counsel: C. LouAn Chiasson, for the Applicant, T.G. Peter McVey, for the Respondent, M.C.S. Jane Lenehan, for the Respondent, R.C. By the Court: [ 1 ] R.J. was born May *, 2010.

He was taken into the temporary care of the Department of Community Services, the Minister of Community Services, removed from his parents' care and placed in foster care almost immediately after his birth. T.G. has been R.J.'s foster parent since May 5th, 2010. A.G. has been his foster brother since that date. [ 2 ] R.J. was placed in the permanent care and custody of the Minister of Community Services on May 30th, 2011. This meant the Department of Community Services, the Minister of Community Services (the Minister), has (had) parental authority over R.J., and the sole authority to place R.J. for adoption.

The Minister chose the home of R.C. as R.J.=s adoptive placement. T.G. seeks to have that decision judicially reviewed. [ 3 ] R.J. has two biological sisters - A.J., born January *, 2008 and B.J., born April *, 2009. They were placed in the permanent care and custody of the Department of Community Services on January 7th, 2010. [ 4 ] They had been in foster care for some time before that, and they remained in foster care until they were placed by the Department of Community Services in the home of R.C. for the purposes of adoption August 30th, 2010.

This was well after the date R.J. came into foster care (May 5, 2010). [ 5 ] Following a June 22nd, 2011 adoption-placement meeting, the Department of Community Services advised T.G. that a decision had been made to place R.J. in the home of R.C. for the purpose of adoption. That home, as I have stated, includes R.J.'s two biological siblings. [ 6 ] On July 13th, 2011, T.G. filed a Notice of Judicial Review of that decision (the decision to place R.J. in the home of R.C. for the purpose of adoption). On July 22 nd , 2011 this Court issued an injunction.

Its effect was to maintain R.J.'s placement in T.G.'s home until this judicial review proceeding was completed. [ 7 ] On August 26th, 2011, R.C. was granted intervener status and joined the proceeding as a party. R.C., as I have indicated, had R.J.'s siblings placed with her for the purpose of an adoption, an adoption that was scheduled to occur in late September of this year (2011) after the completion of the hearing of this matter. I assume that those adoptions have now occurred. [ 8 ] T.G. filed an amended Notice of Judicial Review August 24th, 2011.

It states in part: The Applicant seeks review on the following grounds: (1) the Minister's decision to remove the child from the Applicant's care and place the child with another party is not in R.J.'s best interest as mandated by Section 2(2) of the Children and Family Services Act , and is therefore unreasonable ...

and (3) the Minister's decision did not comply with the rules of procedural fairness which resulted in a denial of natural justice which grounds include but are not limited to the following: (

a) the Minister did not follow her own plan of action which required an updated assessment of R.C. and approval to adopt the child in question; and (

b) the Minister was not impartial in reaching a decision on June 22nd because the Minister had pre-determined R.J.'s placement with R.C.. The Minister was biased or in the alternative created a reasonable apprehension of bias. [ 9 ] The Applicant requests an Order quashing the Minister's decision to remove the child from the Applicant's care and to place the child with another party. The Applicant requests that the decision be declared void ab initio and that the matter be remitted for consideration to a newly-constituted, impartial panel as the matter would be reconsidered on a de novo basis.

The Applicant requests that the process of reconsideration include evidence by way of an attachment study. The Applicant further requests such other relief as may be ordered. [ 10 ] The Minister=s Aplacement choice@ for R.J. was between the two homes - that of T.G. and A.G. where R.J. had and has lived since birth, and that of R.C. and R.J.'s siblings, B.J. and A.J.. [ 11 ] R.C.'s home has been found by representatives of the Department of Community Services to be a racial and cultural match. R.J. and his siblings were born to parents, one of whom was Caucasian and one of whom was Caucasian-African Canadian.

R.C. is African Canadian and indicates her mother was bi-racial, her grandmother Caucasian. T.G. is Caucasian. [ 12 ] While the words "race" and "culture" have been used together, there is little evidence concerning culture (as a concept that is separate from race) before me (as it relates to these two families). I do not think they are the same concept. I think it would be wrong to say or assume that all members of one race were culturally indistinguishable. [ 13 ] The choice of homes for R.J. would be very difficult. Both homes appear exceptional.

R.C.'s home is a racial match and has the advantage of maintaining the biological sibling grouping. T.G. has cared for R.J. since birth. R.J. is undoubtedly attached to her and A.G.. [ 14 ] The first ground of Judicial Review pleaded by T.G. asserts that the decision of the Minister is Anot in R.J.=s best interests...@ [ 15 ] This Court does not have jurisdiction in this proceeding to re-evaluate the merits of the decision made, to re-visit, to re-do, to re-balance the best-interest analysis done by the Minister.

I do not have the jurisdiction to say Ayes@ the right choice was made or Ano@ the wrong choice was made. The first ground of judicial review cannot be said to be unreasonable on its face. The first ground pleaded thus fails insofar as it is a merit-based concern. [ 16 ] The assertion in the Notice of Judicial Review at 3(a) - that Athe Minister did not follow her own plan of action....@ also fails.

As I will later discuss, the process for making the decision lies fundamentally within the discretion of the Minister, subject to a duty of fairness . [ 17 ] I should note at the outset that this proceeding concerns fundamentally the process followed by the Department of Community Services, and more particularly T.G.'s concerns with that process. [ 18 ] R.C. has had little to do with that process save to effectively say on August 9th, 2010, "I may be interested in adopting R.J..

Make sure, make very sure that you check with me if he becomes available for adoption." And on June 15th, 2011 or thereabouts to say, "Yes, I am interested. Yes, I want to adopt R.J.." [ 19 ] The fact that I make limited reference to R.C. in this decision does not diminish my appreciation of the importance of these issues to her (and, for that matter, to A.J. and B.J.), but more reflects that she has not played a role in establishment or creation of the process used by the Department of Community Services, not played a direct role in communication(

s) with T.G. and, apart from having her family and her plan for R.J. before the Department of Community Services on June 22 nd , 2011, not played an overt role in making the decision that was made by the Minister. [ 20 ] R.C. has simply been a person interested in R.J.'s future and that of her daughters. There is nothing that she has done that is improper or questionable. [ 21 ] The heart of this matter concerns, as I have said, the process that led to the decision by the Minister of Community Services. It is not the outcome that is the concern of this review. [ 22 ] In N.N.M. v.

N.S. (Minister of Community Services) (2008), Nova Scotia, N.S.J. 323, the Nova Scotia Court of Appeal dealt with circumstances that are broadly speaking similar to those before this Court. The decision indicates:

(1) The duty of procedural fairness may be engaged whenever a person's rights, privileges, or interests are affected by anadministrative decision. [para. 41]

(2) The nature of the duty of fairness is flexible and variable. It depends on the specific facts of each case. The Supreme Courtof Canada stated in Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653 at 682: >Like theprinciples of natural justice, the concept of procedural fairness is eminently variable and its content is to be decided in the specificcontext of each case.' Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on thecircumstances of the case, the statutory provision, and the nature of the matter to be decided.

The distinction between them thereforebecomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals. Accordingly, the content of the rulesto be followed by a tribunal is now not determined by attempting to classify them as judicial, quasi-judicial, administrative, or executive. Instead, the content of these rules is by reference to all of the circumstances under which the tribunal operates. [at para. 43] [23] How, then, is the Court to determine the duty of fairness in particular circumstances? The Nova Scotia Court of Appeal inN.N.M. observed that Baker v.

Canada Minister of Citizenship and Immigration, (SCC), [1999] 2 S.C.R., 817 set outfive non-exhaustive factors that Courts should consider : (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected by it; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to chooseits own procedures or, when the agency has an expertise in determining what procedures are appropriate to the circumstances, willattempt to consider each of these factors. [para. 44]

(1) THE NATURE OF THE DECISION AND THE PROCESS FOLLOWED IN MAKING IT: [24] The decision in question involved the selection of an adoptive home for the child, R.J., by the Minister of CommunityServices. It is a decision that is personal to the child and the parties involved.

There is no Aright@ choice or answer in such matters. [25] The adoption placement decision affects a number of people including: the child, R.J.; the persons the child lives with;potential adoptive parents - T.G. and R.C.; potential adoptive siblings - A.G.; R.J.'s biological siblings - A.J. and B.J.; the extendedfamily (of all); and the professionals involved. [26] The placement of children in the care of the Minister for adoption should be timely, not delayed. Vulnerable children shouldbe provided with a permanent home as soon as possible.

The younger the child, I think it fair to say, the more important such timeliness. [27] The Nova Scotia Court of Appeal concluded in N.N.M.: The nature of the decision being made by the Minister of Community Services suggests minimal participatory rights for foster parentsgiven the large number of people interested in the decision and the need to make it relatively quickly in the best interests of the children.[para. 62] [28] I agree. [29] With such decisions, the Department of Community Services defines or creates a new family and new family relationships forthe child in question - here R.J., and his parent or parents and siblings.

[ 30 ] The process has the potential of creating a new family through adoption and allowing, if the adoptive parent agrees and it is appropriate to the circumstances, contact with the child's birth or extended family or other meaningful people in the child's life. The evidence before me indicates that this is the case with respect to T.G.'s adopted son, A.G., and his extended biological family. The adoption also has the potential of ending relationships. [ 31 ] With respect to the process, Standard 515(

a) of the Adoption Manual of the Department of Community Services (Exhibit 9 in the proceeding), provides: The selection of an adoption family for children in permanent care and custody by Court Order or under a

Section 68 Agreement must take place with an adoption-placement conference. The persons involved in this conference must include at the minimum the adoption case work supervisor, the adoption worker, and the child's worker. The protection worker and single-parent worker and others involved in the case planning, such as the child's caregiver for the child may also be included. [ 32 ] It appears that the essential people were at the adoption placement meeting (of June 22, 2011). The phrase "child's caregiver" could well include a foster parent such as T.G..

The statutory scheme under the Children and Family Services Act gives the Department of Community Services broad discretion in establishing the process for these decisions.

(2) THE NATURE OF THE STATUTORY SCHEME AND THE TERMS OF THE STATUTE PURSUANT TO WHICH THE BODY OPERATES . [ 33 ] Here, there is a unique statutory or legislative context. It includes: a. The Best-Interest Mandate . [ 34 ] In N.N.M. at paragraph 48, the Court stated: It is the best interests of children that is the paramount consideration for the Minister of Community Services in determining the process to be followed in selecting an adoptive home. [ 35 ] This statement is clear and unambiguous. It reflects and is consistent with Sections 2 and 3 of the Act .

Section 2(2) of the Children and Family Services Act provides: In all proceedings and matters pursuant to this Act , the paramount consideration is the best interests of the child. [ 36 ] I note that (again I am quoting from N.N.M. ): As the best interests of children is the paramount consideration for the Minister of Community Services, the interests of others such as foster parents including their rights to procedural fairness will be by definition secondary to that paramount consideration. [para. 50] [ 37 ] The Children and Family Services Act , Section 3(3) provides: Where a person is directed pursuant to this Act in respect of a proposed adoption to make an order or a determination in the best interests of a child, the person shall take into consideration those of the circumstances enumerated in sub-section 2 that are relevant except clauses (i), (l), and (

m) thereof. [ 38 ] I conclude that the social workers of the Department of Community Services making the decision on June 22nd concerning R.J. were mandated to make a decision that is within the gamut of Sections 2(2) and Section 3(3) of the Act . [ 39 ] Section 3(2) of the Act with respect to the best-interest test provides that: A person making a determination in the best interests of a child shall consider the following circumstances:

(

a) the importance for the child's development of a positive relationship with a parent or guardian in a secure place as a member of a family. [ 40 ] This consideration mirrors the very purpose of adoption. (

b) the child's relationships with relatives. [ 41 ] This obviously includes siblings. In terms of consideration of the child's relationships with relatives, in my view that would include not only current but future relationships with siblings. Here there has been no contact between R.J. and his biological siblings. Consideration of his relationship with them includes consideration of the biological relationship, and current and potential emotional/interpersonal relationship. (

c) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity. [ 42 ] That continuity of care, in my view, would include the care that R.J. here has had from T.G. and his relationships within and around that home. (

d) the bonding that exists between the child and the child's parent or guardian. [ 43 ] There may well be an argument that a foster parent is not a parent or guardian as defined by this Act . This restrictive

interpretation of this particular

section would be more important if the continuity-of-care provision (s. 3(2)(

c) above) was not within this best-interest standard. However, the attachment to or significance of the bond with a foster parent or foster family is appropriately considered under the continuity-of-care provision (s. 3(2)(c)): (

e) the child's physical, mental, and emotional needs and the appropriate care or treatment to meet those needs; (

f) the child's physical, mental, and emotional level of development; - the child's age, stage, and routine; [ 44 ] R.J. is 19 months old. His development is largely positive, his routine regular. - the child's cultural, racial, and linguistic heritage. [ 45 ] In my view, each (culture, race, language) is unique, though each impacts the others. - the religious faith in which the child is being raised. [ 46 ] I have limited or no evidence concerning religion in this case. (

j) the child's views and wishes if they can reasonably ascertained. [ 47 ] They cannot be, due to R.J.'s age. (

k) the effect on the child of delay in the disposition of the case. [ 48 ] All agree that delay is to be avoided. (

n) any other relevant circumstances.

b. The Minister Has Broad Discretion. [49] The Children and Family Services Act gives the Minister of Community Services a broad discretion to select adoptive parentsfor children who are in the permanent care of the Minister of Community Services. In doing so, the Minister has a broad discretion todetermine the decision-making process. [50] There is no requirement that the Minister of Community Services disclose information to either foster parents or potentialadoptive parents.

There is no requirement that the Minister provide in every case a meaningful opportunity for those persons toparticipate actively in the selection process. [51] The Children and Family Services Act provides that the selection of the most suitable adoptive parents is the function of theagency, not the Court. [52] The Children and Family Services Act guides the Minister of Community Services. Relevant provisions of the Children andFamily Services Act include: a.

AND WHEREAS it is necessary to remove children from the care and supervision of their parents or guardians, they should beprovided for as nearly as possible as if they were under the care and protection of a wise and conscientious parent. (paragraph 8 of the

Preamble of the Act). b. Where the Court makes an order for permanent care and custody pursuant to clause (

f) of

Section 1 and

Section 42, the agency isthe legal guardian of the child and as such has all the rights, powers, and responsibilities of a parent or guardian over the child's care andcustody. (s. 47(1)) c. Where practicable, a child who is the subject of an order for permanent care and custody shall be placed with a family of the child'sown culture, race, or language. But if such a placement is not available within a reasonable time, the child may be placed in the mostsuitable home available with the approval of the Minister. (s. 47(4)) [53] I note the use of the disjunctive "or" in Section 47(4).

I do not interpret Section 47(4) as overriding or supplanting theprovisions of Section 2(2) and 3(2) and 3(3) of the Children and Family Services Act insofar as the legislation provides direction to theDepartment of Community Services in choosing adoption placements for children in their care. [54] In my view, the Nova Scotia Court of Appeal in N.N.M. and the statute itself make it clear that the best-interest testenumerated in the statute is the paramount consideration in making decisions pursuant to this legislation. [55] As I have said, the selection of adoption parents is within the discretion of the Agency (Children and Family Services of KingsCounty v.

D.R. (1992), (NS CA), 18 N.S.R. (2d) 1, Nova Scotia Court of Appeal). All decisions concerning the childare within the discretion of the Agency (I.C. v. C.A.S. of Shelburne (2001), N.S.J. 260, N.S. Court of Appeal). [56] In I.C., the Court stated: Generally the Agency decisions about placement of a child should be respected and free from Court intervention. [57] In N.N.M., the Court connected this view to its context: ...giving deference to the Minister of Community Services' selection of adoptive parents in the absence of bad faith or unfairness,supports the aim of certainty in the adoption process.

Without this deference, finality would be elusive in achieving stability for the children involved, and the process would inevitably takelonger and be more complicated. (paragraph 72) [58] And concludes:

The scheme of the Children and Family Services Act providing a broad discretion to the Minister of Community Services equivalent to that of a parent, limiting rights to foster parents, and strict time limits for dealing with children indicates minimal procedural rights for foster parent, higher procedural protection such as greater participatory rights to foster parents, or a formalized, more judicialized decision-making process would inevitably result in delay and would not usually accord with a child's best interest. (paragraph 86) 3.

THE IMPORTANCE OF THE DECISION TO THE INDIVIDUAL OR INDIVIDUALS AFFECTED BY IT. [ 59 ] Plainly put, the decision is life-changing for all involved, particularly R.J. and the T.G. and R.C. families. It could scarcely be more important. 4. THE LEGITIMATE EXPECTATIONS OF THE PERSON CHALLENGING THE DECISION. and 5.

THE CHOICES OF PROCEDURE MADE BY THE AGENCY ITSELF, PARTICULARLY WHERE THE STATUTE (AS HERE) LEAVES TO THE DECISION-MAKER THE ABILITY TO CHOOSE ON ITS OWN PROCEDURES OR, WHEN THE AGENCY HAS AN EXPERTISE IN DETERMINING WHAT PROCEDURES ARE APPROPRIATE IN THE CIRCUMSTANCES. [ 60 ] I will attempt to consider these factors together.

I note that the law is saying that cases such as these are individual and must be seen within the context of their own specific fact situations. [ 61 ] T.G.'s expectations in this case have a context. [ 62 ] By early 2010, T.G. had fostered more than 20 children for the Minister of Community Services. She had adopted A.G., now age 5, from birth, after fostering him from birth. [ 63 ] T.G.'s affidavit of September 13th, 2011 provides, in part (paragraphs 12 to 21): 12.

On or about April 27th, 2010, I advised Cathy Lawrence, my foster-care worker at the Dartmouth office that I did not want to consider further placements of newborn infants in my home on a short-term basis. I made it clear that I was only to be called if the infant was a long-term adoptive prospect. 13. I made this decision in part as a result of the impact on my son A.G. from having foster children leave our home. It was extremely traumatic for him to deal with the loss and the grief of children leaving our care. A.G. has some behavioural issues and has difficulty coping with change. 14.

The Dartmouth office is keenly aware of A.G.'s situation, as his placement and subsequent adoption was handled through their office. 15. On or about May 1st, 2010, I was approached by an intake worker at the Dartmouth office with respect to fostering a newborn. The baby was scheduled to be born by Caesarian

section on May * 2010. 16. I reminded the intake worker of my request only to accept placements if the infant was a long-term adoptive prospect. I was assured this was the case. 17. I was advised that the baby had two siblings currently in care with a foster mother in *, and that there was a prospective adoptive mother for the siblings in *. I inquired as to why the child was not placed with his siblings, and was advised that this foster placement was not being considered for him. 18. I further inquired as to whether the adoptive mother for the siblings was interested in the baby.

I was advised that she was not, and that she only wished to consider adopting the two older siblings. 19. On that basis, and with that reassurance, I advised the intake worker at the Dartmouth office that I would be prepared to

take the newborn into my home. I reiterated that this was conditional on the likelihood that the placement would become permanent with the prospect to adopt should the baby not return to his biological parents. 21. A beautiful newborn baby R.J. was born May *, 2010. Upon his release from hospital two days later, A.G. and I took him to our home. [ 64 ] Mr.

McVey, counsel for the Department has argued that May 1st, 2010 was a Saturday, that the Department of Community Services had no record of a contact on or about May 1st , 2010 that T.G. had with an "intake worker." It is clear, however, that someone contacted T.G. concerning R.J.'s placement with her at or shortly after May 1, 2010. She knew to take R.J. home from the hospital on May *, 2010. [ 65 ] R.J.'s foster placement with T.G. was called a Afoster placement with a view to adopt@.

This is acknowledged in the record of the June 22nd, 2011, meeting, and is referred to being in T.G.'s foster parent file. [ 66 ] At the time of R.J.'s birth and coming into care (in May 2010), R.J.'s siblings, his biological sisters, were in foster care. They had been placed in the permanent care and custody of the Department of Community Services January 7th, 2010, some four months earlier.

A potential adoption placement had fallen through for the girls, and the home of R.C. in *, Nova Scotia was being looked at, examined. [ 67 ] Mary Craig is the adoption supervisor in the Dartmouth office of the Department of Community Services. She was communicating with a worker in the * office of the Department of Community Services, Murdock MacLean. [ 68 ] Tab A of Mary Craig's affidavit indicates that on March 9th, 2010, she received an e-mail from Murdock MacLean confirming that R.C. wished to pursue the adoption of R.J.'s two sisters. Mr.

MacLean wrote: She is very interested ... [ 69 ] The e-mail continued and said (of R.J. who was then unborn): ... although she cannot consider the third child. As I stated yesterday, she states that she would do whatever she could to ensure that openness between the siblings becomes a reality. [ 70 ] R.C., I believe, disputes the accuracy of that communication from the * office of the Department of Community Services to the Dartmouth office (insofar as it describes her statement(

s) to Mr. MacLean). It is, however, the information that the Dartmouth office received and had and is in the Dartmouth office's file. It is consistent with the information that T.G. says was given to her by someone in the Dartmouth office. [ 71 ] R.C. effectively says ALook, I didn't say that@, and yet T.G. has the very information that is in the Dartmouth Community Services file that is Ainaccurate@. That information probably came from the Dartmouth office. [ 72 ] If there was a miscommunication, it is certainly not R.C.'s fault or responsibility.

The information T.G. had could only have come from a representative of the Department of Community Services. [ 73 ] The Minister=s Dartmouth adoption workers were hoping to find a home that would take R.J.'s sisters and, when he was born, R.J.. That is very clear. Their understanding that R.C. was not at that time a possible adoption placement for R.J. is confirmed in an e-mail from Mary Craig to Murdock MacLean of March 9th in response to his of the same date: Yes, are still on the shortlist, and the third baby is negotiable. Their preference is a family who would be willing to consider all three.

However, that may not be possible or reasonable given the young ages of the girls. There is one other couple that they are looking at that has not answered the question about the third child either. Given that the third child has not been born, nor do we have a permanent care and custody order yet, that cannot be the defining factor for the two girls. We thought that we might have that opportunity, referring to placing the three of them, but that is not the case. Thanks for answering the question on baby number 3. That's helpful information and an honest answer. [ 74 ] I take Ms. Craig to be referring to Mr.

MacLean=s AanswerA that, no, Ms. R.C. could not consider R.J..

[ 75 ] When R.J. was born, he was not placed in the same foster home his sisters were in. His sisters were in that foster home, it appears, until August 30th of 2010. A placement was needed for R.J.. [ 76 ] Communications within the Department of Community Services much later (in fact in July or August of this year) suggested that Athe pounding concern at the time was a placement for R.J.@.

It appears that foster placement options were limited at the time of R.J.=s birth. [ 77 ] T.G., I have concluded, had her principle contact with the social worker or social workers in the Child Protection and/or Foster-Care Units of the Department of Community Services (which are separate from the Adoption Unit). This proceeding has made it clear that they are quite separate. [ 78 ] Someone in the Child Protection/Foster Care Units placed R.J. in T.G.'s home.

I am satisfied that, and conclude that, T.G. did, as she asserts: - have contact with a social worker at the Department at or around the time R.J. was placed with her; - ask the questions she said she asked; and - received the answers she outlined, answers that are consistent with the Department's own files. [ 79 ] I am also satisfied that, quite separate and parallel to those workers, the adoption workers in the Department were focussed on securing a placement that would involve all three children. [ 80 ] It appears the placement of R.J. with T.G. from her point of view followed a course that had her concerned with and wanting to minimize or lower the risk of disruption to her child, A.G. (and probably herself), from becoming attached to a child who would then be moved. [ 81 ] Counsel for the Department at one point suggested A.G. was irrelevant to this proceeding.

He certainly is not irrelevant to T.G.'s concerns, and could reasonably be considered as part of the consideration of continuity of care for R.J. under the best-interest scheme described by the Act . [ 82 ] That said, it is clear, very clear that there could be and were no promises to T.G. at the time of R.J.=s foster placement. There was no guarantee that R.J. would be placed in the permanent care and custody of the Community Services and thus become Aavailable@ for adoption.

There was no guarantee that R.J. would be placed for adoption with T.G. (despite her affidavit's reference being limited to the question of placement with her unless there was a placement with parents).

Other placements were always possible and available, and I am satisfied that she knew and understood that. [ 83 ] I also conclude that at the time R.J. was born and taken into care pursuant to the Children and Family Services Act, and placed with T.G., the Department of Community Services did not have a foster or adoption placement available that was prepared to then take all three siblings. [ 84 ] I conclude that the placement of R.J. with T.G. as a Afoster with a view to adopt placement@ created a legitimate expectation that she, T.G., would be looked at as a serious option or choice should R.J. become available for adoption. [ 85 ] The term "foster care with a view to adopt" is not a category of foster parent that is legislatively recognized.

It was and has been used in reference to T.G. and R.J.'s placement with her. It has been used by the Department of Community Services. It is the Department of Community Services who brings that phrase to this proceeding and to T.G. and to R.J.. [ 86 ] It is a term used by the Department of Community Services in dealing with foster parents. It seems obvious that there is more than one possible rationale for the use of such a phrase. [ 87 ] The phrase could be used where a person wants to adopt. Fostering may be seen as an alternative, a different track to possible adoption.

The Minister may see the use of the phrase as positive, as a way to increase fostering options, to recruit or broaden the pool of people who are prepared to foster, to encourage people to foster. The evidence here suggests that T.G. clearly said "I will foster if..." and the Minister made the foster placement, and used the phrase "foster with a view to adopt." [ 88 ] For a child in foster care, the use of the phrase or concept may well be a way to possibly avoid a change in placement, to provide or encourage continuity of care should the child become available for adoption.

In that regard, I note the case of the Children's Aid Society of Renfrew County v. H.M.S. (2009), Carswell, Ontario 349, a case of the Ontario Superior Court of Justice refers to just that purpose. [ 89 ] It is also a phrase that is used by the Department of Community Services in protection proceedings; in presentations to the Court, most often in plans of care. This was done in this case with R.J.. The Agency Plan of Care for R.J. (dated August 27th, 2010)

read: The baby R.J. is in a foster home with a view to adopt. There is also an interest expressed by the adoptive parents of A.J. and B.J. that, pending his availability for adoption, they would very much like to be considered for adoption placement. [ 90 ] Obviously the phrase "view to adopt" is used here to convey a message of potential stability or continuity to the Court and to natural parents of children in proceedings where permanent care is a possibility. [ 91 ] When asked about the phrase "foster care with a view to adopt," Mary Craig, the adoption supervisor, testified as follows: Q.

The sentence >the baby R.J. is in a foster home with a view to adopt', what evidence if any can you offer the Court on that expression - >a foster home with a view to adopt'? A. When they refer to foster with a view to adopt, that usually means it's a foster parent who also has been approved to adopt. There's two distinct approval processes. One is for a foster parent; one is for an adoptive parent.

That in ... when I see this, it simply means that if a child becomes available for adoption, if a child enters permanent care and custody, and if there are no other obligations or best-interest options for this particular child, the foster parent is also an adoptive parent and would be in a position to adopt the child. [ 92 ] Ms. Craig's use of the phrase "no other obligations or best-interest options" makes it sound like she views a Afoster parent with a view to adopt@ as a last resort for adoption placement. Her evidence continued: Q. Okay.

Specifically in the adoption planning minutes which is in a different document, it's in Exhibit 4, Decision-Maker Record at Tab 1, page 8, stamped 8, about a quarter of the way down the page, there's a paragraph beginning, >T.G. did come in with a foster parent with a view to adopt when she started fostering.' This is written in your file. Are you the author of these minutes? A. I am the author of these minutes, yes. Q. Then can you explain what that sentence means, the large sentence that runs all the way across the page? A. The sentence that you just read?

This would have been what T.G. was interested in when she came into fostering. So I would write this down and basically writing down what perhaps a foster worker may have informed me, which is T.G. was very much interested in not only fostering but also adopting. This was written in her file. That pointed out to me during the meeting that that was a phrase that was used in her file. My understanding is that that's certainly what happened with A.G.. She fostered A.G. and she adopted A.G..

But also this would mean to me, as I explained before, she's a foster parent who at this point in time approved to adopt; therefore, she may be available to adopt the child that's in her home. [ 93 ] This would seem to be an understatement of the circumstances at the time. Unfortunately, the use of the phrase "foster care with a view to adopt" appears to be one that is problematic within the Department of Community Services. [ 94 ] Ms. Craig, the adoption supervisor, was asked: Q.

When you are placing a child for the purposes of foster care and you're aware that the foster parent that you're placing the child with also wishes to adopt as an agency, do you have to take into consideration is this somewhere we would want to leave this child permanently? Is that part of the initial foster-placement analysis? A. My understanding of the foster care program is that they place children for the purpose of fostering. It's not their role to place children for adoption or to consider adoption placements when they're placing a child in a fostering situation.

That's my understanding of their role. [emphasis added]

[ 95 ] The lack of connection, the separateness between the Department of Community Services adoption program and the foster-care program is not something that would be apparent to an outsider. [ 96 ] If it is not the role of the fostering program to consider adoption placements when they are placing a child in a fostering situation, then one has to question why the phrase "foster with a view to adopt" is or would be used. It was used. It is used by the Department. [ 97 ] The evidence before me indicates, and I conclude, that discussions concerning potential adoption were had with T.G. when R.J. was placed.

At the time, the Dartmouth office of the Community Services believed - perhaps inaccurately given R.C.'s evidence - that there was no foster or adoptive placement for all three siblings. This was communicated to T.G.. The possible adoption of R.J. was discussed by a representative of the Agency with T.G.. I accept T.G.=s evidence in this regard. [ 98 ] The adoption workers at the Department in fairness do not appear to have been involved in these discussions.

That said, they have demonstrated limited respect or understanding of the impact such discussions would have on T.G. or foster parents in her situation, or the impact the discussions would have on the reasonable expectations of a Afoster parent with a view to adopt@ (in terms of their being considered for possible adoption). [ 99 ] There are a number of issues with communication within this proceeding. Most of these issues, in my view, start with and are the responsibility of professionals at the Department of Community Services.

I have discussed the use of the phrase Afoster parent with a view to adopt@. [ 100 ] The term "adoptive parent" is defined in the Children and Family Services Act ,

Section 67(

b) as: Adoptive parent means a person who has acquired the legal status of a parent by virtue of an order of adoption. [ 101 ] The evidence before me indicates that on August 27th, 2010, the date of the Agency plan, R.J.'s siblings had not even been placed for adoption yet, yet the Agency plan refers to A.J. and B.J.'s adoptive parent.

A.J. and B.J. were placed with R.C., the evidence indicates, on August 30th, 2010, after the date of the Agency plan. [ 102 ] There had been no adoption order granted with respect to the siblings at the time of the September 21st-22nd hearing in this matter. [ 103 ] The Agency plan for R.J. refers to his sisters' adoptive parents. Ms.

R.C. is single. [ 104 ] As I have indicated, R.C. had (at an August 9 th , 2010 pre-placement meeting with respect to A.J. and B.J., R.J.'s siblings) said: I made it very clear to everyone at the meeting that if R.J. was placed in permanent care, I wanted to be advised immediately so that I could make a decision as to whether or not I was in a position to adopt him and raise the three siblings together. [ 105 ] R.C.=s position is very clear from that point forward, and I do not think waivers from that position. [ 106 ] The evidence is consistent in indicating that R.C. maintained this position or view until after R.J. was placed in the permanent care and custody of the Department of Community Services on May 30th, 2011.

She was being cautious. On June 8th, 2011, Murdock MacLean of the * office of the Department of Community Services made the following note (concerning R.J.=s possible placement with R.C.): On this date, we reviewed the information furnished by the Dartmouth District Office, and R.C. indicated that she wanted some time to consider this very carefully.

R.C. is torn between committing to this child which she would like to do ...and facing an increase in the financial responsibility of caring for an additional child. [ 107 ] As late as June 8th, 2011, then, R.C. had not said affirmatively "I want to adopt R.J.." There is nothing wrong or improper about this. She was being careful and cautious in circumstances where it was appropriate to be careful and cautious. [ 108 ] From late August of 2010 when the Agency plan for R.J. was signed through June of 2011, T.G. was made aware of the fact that R.C. had become a possible placement for R.J.. T.G. was aware that Ms.

R.C. had indicated she wanted to be contacted when and if R.J. was placed in the permanent care of the Agency, and thus available for adoption. As I indicated, from R.C.'s point of view, she was simply being cautious.

[ 109 ] T.G. was spoken to by a variety of workers from the Department of Community Services after August 30th, 2010.

More than once, there was uncertainty about the status of A.J. and B.J. in the statements of the workers, with workers saying or seeming to say that A.J. and B.J. had been adopted. [ 110 ] This continued right up to and into this proceeding when R.C.'s initial affidavit indicated the adoptions had not taken place, and counsel for the Minister acknowledged having difficulty clarifying this issue. [ 111 ] This was seen as late as August 23rd, 2011 when the adoption worker Therese Henman-Phillips e-mails the * adoption worker asking: Hi, Murdock. Justice wants to know if R.s adoption with the girls is finalized.

If not, does she have a Court date? [ 112 ] I refer to this because it illustrates that on occasion, information flow between the social workers involved with R.J., the T.G. home, and the R.C. home, was less than ideal. R.C. has asserted that some of the statements attributed to her by the Department of Community Services' workers in * were less than accurate. [ 113 ] On June 15th, 2011, Murdock MacLean advised the Dartmouth office of the Department of Community Services that R.C. wished to adopt R.J..

Jill Wilson is the District Manager of the Department of the Dartmouth office of the Department of Community Services. [ 114 ] On June 16th, Ms. Wilson had a telephone conversation with T.G.. She told T.G. an adoption-placement meeting for R.J. was going to be arranged shortly. The adoption workers were moving quickly, immediately after R.C. had said Ayes@. [ 115 ] T.G.'s recollection of the telephone call between her and Ms. Wilson is as follows, and I quote from her affidavit, clause 50: 50.

On June 16th, 2011, I was advised by Cathy Lawrence that the adoptive mother in * of R.J.'s biological siblings was definitely interested in adopting R.J.. I indicated that I was very interested in adopting R.J. as well and had been from the time he'd been placed in my care at two days old. [ 116 ] T.G. had confirmed this with representatives of the Department, and Cathy Lawrence in particular, in conversations earlier, including ones held December 21st, 2010 and January 6th, 2011. 51.

On or about June 16th, I spoke to Jill Wilson and asked what I could do to ensure the adoption-planning team had all my information, specifically my letter of April 14th, 2011, to take to the meeting. Jill Wilson informed me that usually foster parents are present at the meeting. But because I was prospective adoptive parent, that would be a conflict for me to be at the meeting. Jill Wilson then advised me, and I do verily believe, that she was going to check with other participants at the meeting to see if they all agreed to have me come and present my case for adopting R.J..

She asked me what time would be convenient, and I advised her that I would make myself available. [ 117 ] I conclude that Jill Wilson did say this to T.G.. Jill Wilson may have checked with other people, but it was at her direction, not through any form of consensus, it appears, that T.G. would attend the meeting. T.G.=s affidavit goes on: 53. I was then advised by Nicole Blanchard in a telephone call on approximately June 20th that I was being permitted to attend the meeting. [from T.G.=s affidavit] [ 118 ] Ms. Blanchard's evidence and that of T.G. is consistent in indicating that this was the extent of Ms.

Blanchard's call, that there was (in this call) no limit, no qualification placed on what T.G. could do at the meeting. T.G. asserted in her affidavit: 54. I was advised by Nicole Blanchard on various occasions that a final adoption meeting ... a decision had not been made, and that the final decision would be made at the meeting scheduled for June 22 nd . 55. On June 22nd, 2011, I met with the adoption-planning team to discuss the adoption placement of R.J.. 56.

I was advised by the adoption-planning team that they had two concerns related to the placement of R.J. for the purpose of adoption: one, contact with siblings; and two, cultural heritage. [ 119 ] Ms. Wilson's recollection of the telephone call with T.G. differed. Ms. Wilson's affidavit states:

32. It is also true, as she says, that I was concerned when we spoke and expressed my concern at T.G. should she come before the adoption-placement meeting and present her desire to adopt R.J.. 33. I explained to her that the foster parents of children in care are often invited to adoption-placement meetings, but prospective adoptive meeting are not given such a hearing. I stated to her my belief that it would be a >conflict' for her to be invited in one capacity but then to speak in a different capacity. 34.

I did not say to T.G. on or about June 16th, 2011, as she deposed, that I was going to check with other participants at the meeting to see if all agreed to >have me come and present my case' to adopting R.J.. 35. Rather, on or about June 13th, 2011, I made only the following commitments to T.G.: (

a) She would be invited to a portion of the adoption-planning meeting to provide detailed information as to his foster parent regarding R.J.'s progress and development. (

b) I would discuss the case with the adoption supervisor, Mary Craig, and have T.G.'s participation in the adoption-planning meeting scheduled with the team. (

c) If a decision were to result from that meeting that led to R.J. being moved to reside with his siblings, T.G. and her son would be actively involved in transition planning. (

d) Costs associated with adoption transition will be covered by the Agency. 36. I did speak with Mary Craig regarding my conversation with T.G., informing her that I invited T.G. to come to speak at the adoption-placement meeting, but only providing the information regarding R.J.'s progress and development. 37. I recall that Mary Craig expressed to me her concern with offering an oral hearing to a prospective adoptive parent, an opportunity our agency does not provide to other prospective adoptive parents. 38.

I directed Mary Craig to allow T.G. to participate in the adoption-placement meeting on terms I had approved. I did not ask her or other members of the team if they would agree with this, but gave a direction as district manager. [ 120 ] Ms. Craig's evidence makes it clear that Ms. Craig was less than pleased with the decision to invite T.G. to the June 22 nd , 2010 meeting. 48. I also gave no directions to Mary Craig or any adoption worker regarding what the outcome of the meeting should be, should or should not be. [ 121 ] Though T.G.=s and Ms.

Wilson=s accounts differ, they both appear to anticipate that the decision between the two potential adoption homes would be made at the adoption-placement meeting, and that that decision had not yet been made. [ 122 ] Nicole Blanchard confirms that she was the person tasked by Mary Craig, the supervisor, to contact T.G. and tell her she could come to the meeting. Nothing else was stated to T.G. by Ms. Blanchard. [ 123 ] Once more, however, information within the Department of Community Services is inconsistent.

On June 21st, 2011, the day before the June 22 nd adoption-placement meeting, Therese Henman-Phillips, the adoption worker, e-mailed workers at the * Agency saying with respect to the June 22 nd adoption-placement meeting:

The foster mother will be attending so we will hear more about her position, interest which she has expressed to management, and morehistory on Baby R. [124] Clearly Ms. Henman-Phillips on December 21st has the expectation that T.G. will do what T.G. says she expected to do -present her position with respect to the adoption. [125] I conclude that T.G. had the same expectation that Ms. Henman-Phillips had - that she would have an opportunity to present herposition, her plan at this June 22, 2010 meeting.

As or more importantly, T.G. had the expectation and impression that the decisionbetween the two plans had not been made, and that the decision between the two plans would be made at the meeting. I conclude thatthese expectations were induced in T.G. by the actions of representatives of the Minister. [126] The test for a reasonable apprehension of bias was set out by de Grandpre, J. writing in dissent in the case Committee for Justiceand Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369 at page 394: The apprehension of bias must be a reasonable one held by reasonable and right-minded persons applying themselves to the question andobtaining thereon the required information. That test is: What would an informed person viewing the matter realistically and practically and having through the matter throughconclude? Would he think that it was more likely than not that the decision-maker whether consciously or unconsciously would notdecide fairly? [127] The reference to this test is in the Baker case.

The case goes on to say: It has been held that the standards of reasonable apprehension of bias may vary like any other aspect of procedural fairness depending onthe context and type of action performed by the administrative decision-maker. [128] There are indications here that the decision that was to be made on June 22nd was pre-judged, that R.C., once her plan was putforward, was effectively chosen, and this was for all practical purposes in place before the June 22nd, 2010 meeting. These factorsinclude:

(1) On June 6th, 2011, Jill Wilson, the Department District Office supervisor, wrote Arlene Johnson, the executive director of theMi'kmaq Family and Children's Services saying that there was information that R.J. may have aboriginal heritage so that because of this,the Mi'kmaq agency had the authority to assume responsibility for R.J.. Ms. Wilson's letter asked that the Mi'kmaq agency decline toassume responsibility for R.J.'s placement. Ms.

Wilson wrote, "The Agency is pursuing adoption placement for R.J. in the sameadoption home with his siblings." [129] I recognize that this was before R.C. confirmed in an absolute sense her interest in adopting R.J. (which was done on June 15th). Ms. Wilson had written a previous letter to the Mi=kmaq agency (September 23rd , 2010) and in that letter had referred to both potentialplacements, the T.G. and R.C. homes. [130] Ms.

Wilson explained this saying that she did not mention the possibility of a placement in the T.G. home (in the June 6th, 2010letter) because she thought it would slow down the response, the waiver from the Mi'kmaq agency. [131] It is a troublesome explanation. Either incomplete information was deliberately given the Mi'kmaq agency, or the districtsupervisor was indicating that if R.C. confirmed her interest, her plan was going to be adopted, chosen for R.J.. [132] Ms. Wilson suggested that the Mi'kmaq agency had been slow to respond with B.J. and A.J..

A good portion of the delay then(with A.J. and B.J.) was at least in part due not to the Mi'kmaq agency but delay by the Dartmouth District Office in writing theMi'kmaq agency, which did not occur for some three months after the permanent care and custody order was obtained for A.J. and B.J..

(2) On June 21st, the day before the June 22nd adoption-placement meeting, Therese Henman-Phillips (who was the principaladoption worker for R.J.) e-mailed the * Agency saying: Hi Murdock and Tracey We are having adoption-planning meeting on Wednesday to specify R. as the identified placement for Baby R.

The foster mother will be attending, so we will hear more about her position, interest which she has expressed to management, and more history on Baby R. Once R. has been identified/specified, I will arrange for the adoption-planning notes to be forwarded to you so that we can move forward with R.'s update. I'm not sure if the idea of R. fostering the baby will come up tomorrow, given she will need childcare either way given the absence of parental leave. I'm not sure what her take would be on that in the interim until notice could be completed. [ 133 ] I conclude Ms.

Henman-Phillips was effectively saying Athis is what's going to happen. R.C. will be chosen. It may not go well with T.G.. We may need to look at fostering pretty quickly here@.

(3) June 22nd, 2011, the * Agency wrote back (while the meeting was going on): Hi, Therese and Tracey. Good to know that you're having the meeting to confirm R. as the identified placement. Let me know the outcome of your meeting with the foster mother, as traditionally foster parents would be considered an integral part of the pre-placement process. Let me know as soon as possible whether we have to move towards fostering this child. [ 134 ] Clearly the * Agency understood that the R.C. home was the chosen one before the meeting was over.

(4) June 15th there was an e-mail from Therese Henman-Phillips to Beth Archibald, Nicole Blanchard, Mary Craig, Cathy Lawrence, copied to Murdock MacLean: Re: Baby - I just received a message from Murdock. R.C. is in favour of adoption of R.J. fully. The next step is once 30 days passes, my vacation is until July 5th, is R. would like to arrange a history presentation with the foster mom. We also need that updated medical info, if we can check on that updated medical and the O/T appointment info.

We should book adoption planning to confirm, formalize as well, and I guess to ensure the foster mother will cooperatively work with us on this placement, given her expression of interest in R.J.. Thanks, Therese. [ 135 ] Very clearly, the decision had been made virtually immediately upon hearing from R.C.. This e-mail is to a number of the people who were at the June 22nd meeting.

(5) Mary Craig, the adoption supervisor, testified as follows: Q. Would it be fair to say that the only option for consideration at the June 22nd meeting was placement with R.C., and only if it fell through were other options going to be examined? A. That's correct. Although we did have ... we knew of T.G.'s interest. We knew that she had a written interest. We also considered the attachment and continuity of care for the child. In this particular circumstance, we knew there was somebody else that was interested in putting forth a plan for R.J., but on June 22nd, our first plan was R.C.. Q. The second plan was not up for consideration unless the first plan failed, correct?

A. That's correct. [ 136 ] There was no chance in this scenario, in these circumstances that T.G.'s plan for R.J. would be considered. [ 137 ] Ms. Craig, in her affidavit, states at paragraph 31: 31.

On the basis of the information available to me, I believe as an agent of the Minister of Community Services and the adoption supervisor of the Agency that T.G. was afforded fulsome opportunities to participate in the adoption decision-making in relation to R.J. as the foster parent of the child and as a person who desired to adopt the child. [ 138 ] T.G. was present at the meeting, but the evidence indicates that there were indications from the district supervisor, from the adoption supervisor, and the adoption worker that the decision had been made.

(6) Finally, at the meeting on June 22nd, Mary Craig presented T.G. with a package of materials she [Ms. Craig] had prepared on the importance of siblings being placed together, excerpts from articles, internet sources, et cetera. Clearly, this was delivered to rationalize the decision to place R.J. with Ms. R.C., and was prepared ahead of time and packaged for delivery to T.G.. [ 139 ] One of the articles referred to the importance of placing siblings together when they come into care, for doing otherwise created attachment issues that complicated placement. This is exactly what has happened with R.J..

That portion of the article, however, was not included in the package given to T.G., having apparently been edited out by Ms. Craig. [ 140 ] Ms. Craig testified later in her testimony that: We, the Department, could not have made a decision concerning T.G. June 22nd, 2011 because a culturally competent placement requires approval of a supervisor. [ 141 ] I think that this comment illustrates the focus on R.C. to the exclusion of Ms. Craig, and is almost an attempt by Ms.

Craig to rationalize the fact that T.G.'s plan was not really considered at the June 22nd meeting. [ 142 ] If approval of a supervisor was the measure of what should, could be considered, then no decision could have been made with respect to the R.C. home either, as placement of another child during the probation period of an adoption placement requires the supervisor's approval. This approval was later sought by the * Agency on July 21st, 2011 with respect to Ms. R.C.=s home. [ 143 ] I recognize that the decision on June 22nd by the Department was made subject to this (and securing other information).

However, speaking of T.G.'s plan in terms that suggest that, well, we just couldn't have considered it anyway because it would have needed supervisor's approval is far from an even-handed approach to the two plans. [ 144 ] Ms.

Craig, or at least her adoption unit, as well as other representatives of the Department of Community Services, seemed on a number of occasions uncertain whether R.C.'s adoption of A.J. and B.J. had been finalized, at times referring to the adoption as having been completed and finalized. [ 145 ] Once it had become an issue in the Court and the Court wanted clarification, Therese Henman-Phillips e-mailed Murdock MacLean, the * adoption worker, on August 23rd, 2011 - the e-mail saying, "Justice wants to know if R.'s adoption with the girls is finalized." [ 146 ] Again in my view, the lack of attention to such a basic detail as whether or not the adoption had completed illustrates the enthusiasm the adoption workers had for the R.C. plan from the moment R.C. put it forward. [ 147 ] The Department of Community Services effectively shifted its position during the course of these proceedings, moving from the view expressed by its counsel on July 22nd, 2011: On our facts, you have written submissions, a district manager deciding to allow her, T.G., to come to the meeting personally and present her case and allow her to present it in writing.

On June 13th, Ms. Wilson has a telephone conference with T.G. to discuss in detail her plan which is the April letter, her desire to put forward a plan.

Ms. Wilson who is the deciding person in the Agency office listens to what she said, had read her first letter which is attached to the affidavit, and at that point Ms. Wilson decided a full hearing including T.G. was required because there were two plans. [ 148 ] I asked counsel for the Minister a question: Q. The communication from the Department to T.G. concerning the June 22nd meeting refers to June 22nd being the date that this matter would be decided. The date there would be a final decision, and invited her to participate in the decision. That's what I gleaned from the affidavit I have. A. That's correct.

The reference is to Ms. Blanchard's affidavit. [ 149 ] The Department's position moved from this to the position that T.G. was not told that she could present her views at the meeting, and the meeting was primarily to consider the R.C. home, just to Aconfirm the R.C. home@. [ 150 ] I want to be clear. The submissions of counsel are not evidence, but they do here demonstrate again the communication issues within the Department of Community Services.

The Court has been given two very, very distinct messages (at different times in this process). [ 151 ] The Department of Community Services in its brief observes at pages 19 and 20: It is only a legitimate expectation that may inform the content of the duty of procedural fairness. The Applicant must establish that she had a legitimate expectation to identify procedural rights. Beyond that, her expectations are not relevant to the matter under review. What then is a legitimate expectation?

The legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. and (quoting from Baker ) as does the Minister's counsel: Our Court has held in Canada this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights supplied in Canada. If a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision.

If the claimant has a legitimate expectation that certain procedure will be followed, this procedure will be required by the duty of fairness. The doctrine as applied in Canada is based on the principle that the circumstances affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will be generally unfair for them to act in contravention of representations to procedure or to backtrack on substantive promises without according significant procedural rights.

The doctrine of legitimate expectation is an extension of the rules of natural justice and procedural fairness. It looks to the conduct of the Minister or other public authority in the exercise of discretionary powers including established practices, conduct or representations that can be characterized as clear, unambiguous, and unqualified that has induced in the complainants a reasonable expectation that they will retain a benefit or be consulted before a contrary decision is taken. To be legitimate, such expectations must not conflict with statutory duty.

Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous, and unqualified, the government may be held to its word provided the representations are procedural in nature and do not conflict with the decision-maker's statutory duty. [ 152 ] I conclude that T.G. had a legitimate expectation that the June 22nd meeting would choose between the two potential adoption placements.

The Department of Community Services had put forward a rather convoluted, at times contradictory, position with respect to that meeting. [ 153 ] I conclude the meeting was held out by the Department as the time when the choice between the two homes would be made, that the test to be used at that meeting would be the best-interest test as defined by the Legislature, that it would be a test that would be applied to the two plans. [ 154 ] The Department's final view that really this meeting was simply to confirm the R.C. plan, I conclude, was what occurred.

The Department does not appear at any time to have communicated to T.G. that, look, there's one plan.

You will only be considered if that plan fails. [ 155 ] Representatives of the Department did, prior to the meeting, point out policies relating to sibling placement and culture, but did not - in my view could not - assert to T.G. that these policies trumped the best-interest considerations such as continuity of care, and the possible disruption on R.J. of disruption in that continuity of care. [ 156 ] There is absolutely no question that the sibling considerations, the racial considerations are critically important.

But they are not so important that the attachment issues, the possibility of disruption of care, the broad application indeed of the best-interest test do not even reach the table of the meeting unless those first considerations are found wanting. I note this is a situation where there has been, to the Court's knowledge, no contact between R.J. and his siblings. [ 157 ] T.G. was not told that the June 22, 2011 meeting was to confirm the R.C. placement. [ 158 ] She had a legitimate expectation that there would be a choice made, a comparative choice, a comparative discussion between the two plans at that time.

The evidence satisfies me that this was pre-judged. The evidence satisfies me that the Minister held out that this would be a meeting that would choose between the placements. [ 159 ] Ms. Craig was the adoption supervisor. She ran the meeting. She was, I conclude from the evidence, clearly displeased with Ms. Wilson having okayed T.G.'s presence at the meeting. Ms. Craig acknowledged that the only option considered at the meeting was R.C.. [ 160 ] I am aware that Ms.

Craig's affidavit asserts, "The Minister did not pre-judge the adoption placement decision." I conclude that the Minister did pre-judge the adoption placement decision. I conclude that from the communications made by representatives of the Minister internally and to other agencies - the Mi'kmaq agency, the * agency - and from the other factors I have outlined. [ 161 ] The Minister had control of this process.

The representatives of the Minister did not say we are looking at the R.C. home and only the R.C. home, and then only if we do not place in the R.C. home will we look at your plan. [ 162 ] Instead, T.G. was referred to policies about sibling placement and race, and not disabused of her own notion that attachment, continuity of care were factors that should be considered. T.G.=s view is entirely consistent with the Act . She was not disabused of the idea that the meeting would consider the two plans.

She was told it would. [ 163 ] Counsel for the Minister, in closing his cross-examination of T.G., asked her a series of questions about Adid her beliefs create the problems here?@. Her beliefs and expectations were induced by representatives and representations by the Department of Community Services. [ 164 ] While the meeting minutes of June 22nd recite that attachment was considered, I conclude that it was only considered insofar as it was concluded that this was a child with a healthy attachment, he could re-attach.

The consideration of it was entirely within the context of R.C.'s plan and the confirmation of that plan. [ 165 ] I do not conclude that this is a circumstance where the Minister's partiality was simply fettered by law. The Minister's position throughout has been that Section 47(5) of the Children and Family Services Act guides its policy. Section 47(5), to restate it, states that: Where practicable, a child who is the subject of an order for permanent care shall be placed with a family of the child's own culture, race, or language.

But if such a placement is not available within a reasonable time, the child may be placed in the most suitable home available with the approval of the Minister.

[ 166 ] The

section is qualified, as I have indicated before, by what is practicable. The reference to "within a reasonable time", in my view, is reasonably taken as a reference to the attachment issues which are in the best-interest test - and the impact that the passage of time has on those factors. The longer a child is in a home, the more attachment issues should be considered. [ 167 ] As I pointed out earlier, I conclude that the overriding policy (and statutory) guideline is that of the best-interest test, the factors in Section 3(2).

Those factors include the Section 47(5) consideration and others including some uniquely applicable to the T.G. home. [ 168 ] "Practicable" has been defined as meaning feasible, fair, and convenient.

An act is practicable if circumstances permit its performance. Practicable here must be seen from the child's perspective through the prism of the best-interest standards. An approach (as it appears to be have been taken here) that elevates a plan that is said to match sibling and race considerations (the Section 47(5) considerations) to the point that only if that plan is rejected will an alternate plan involving continuity of care be considered excludes continuity of care from consideration.

This is in my view an error. [ 169 ] Rule 7.11 provides that the Court may grant any order in the Court's jurisdiction that will give effect to a decision of judicial review including any of the following orders: (

a) an order dismissing the proceeding; (

b) an order setting aside the decision under review; and (

c) an injunction preventing the Respondent from doing anything or requiring a Respondent to do anything. [ 170 ] I conclude here that: (1) the Department of Community Services failed to apply Section 3(2) of the Children and Family Services Act to their decision process and made an error of law; (2) that it pre-judged the decision that was to be made on June 22nd, 2011, having represented that they were undertaking a process of choice, considering two alternative adoption plans. Indeed, their final submissions confirm this.

Their final submissions are effectively Awe were only there to confirm the R.C. placement@. I conclude that they represented to T.G. that the meeting on June 22nd would involve a choice between the two plans. [ 171 ] The process was chosen by the Department of Community Services, held out and not followed by it. Their actions were unfair. In these circumstances pre-judging the decision, in my view, violated the principles of fairness and natural justice. The decision of June 22nd is set aside, voided, quashed.

REMEDY [ 172 ] The Adoption Manual of the Minister provides at: Standard 2.8(a): Applicants are deemed to be in a conflict of interest shall be referred to an alternative agency or district office.

Persons in a conflict of interest include a community resource person who provides services to an agency or district office, perhaps including someone fostering with a view to adopt. [ 173 ] Irregardless, there is a conflict between T.G. and the Dartmouth District Office now that arises as a result of my conclusions with respect to the Dartmouth District Office's actions in and around the decision of June 22 nd . [ 174 ] The policy manual speaks to a process when that occurs, when there is a conflict. It speaks to a referral of the matter to an outside agency or agencies.

The Minister's submission concerning remedy is consistent with this policy. [ 175 ] With respect to remedy, I would direct:

(1) The Minister shall forthwith convene a fresh panel of three experienced social workers, two adoption workers, and one foster-care or child-in-care worker. [ 176 ] The Minister had suggested there be three adoption workers. The adoption-placement manual contemplates more than simply adoption workers at these meetings. The evidence before me satisfies me that adoption, protection, and foster-care programs, at least in the Dartmouth District Office, operate almost as silos at times, and that this fresh panel should have the benefit of more than simply the adoption-worker view.

(2) These workers shall be from outside of the central or eastern regions of the Department of Community Services. These are the two regions identified by counsel for the Minister as having been involved in this proceeding - that of the Dartmouth District Office, and that of the office that served Ms. R.C.. [ 177 ] The workers shall sign an affidavit confirming no prior involvement or knowledge of the child or families in question. They may, should the Minister choose, be retired workers from an agency.

(3) This panel will make a fresh adoption decision on its merits without input or advice from workers who are or have worked for the Central District since January 1st of 2010.

(4) T.G. and R.C. shall be treated by this panel as a two-person shortlist of prospective adoptive homes for R.J.. No other homes shall be considered.

(5) The panel will be provided with: (

i) the safe assessment and updates for both persons; (ii) the child's social history; (iii) written submissions from T.G. filed and provided to them by January 14th, 2012; (iv) written submissions from R.C. filed and provided to them by January 14th, 2012.

(6) Every attempt to identify the panel members within two weeks of this time will be made.

(7) Upon the creation of the panel, the panel will be informed that they have the option of retaining the services of a psychologist to prepare a report concerning R.J.'s needs and the abilities of each home to provide for those needs, including addressing issues of openness and adoption. That psychologist may be Carolyn Humphreys or another professional chosen by the panel. The report, if sought, must be available no later than January 31st, 2012. The report would inform, not bind, the panel. It would be prepared at the cost of the Department of Community Services.

It would be shared upon its receipt with counsel for Ms. C., counsel for T.G., and counsel for the Minister. T.G. and Ms. C. may each write the panel stating reasons why they feel a report should or should not be done. The letter should not exceed four pages, and should be available to the panel by Wednesday, December 14 th , 2011.

(8) The panel shall meet and make their decision in writing by February 28th, 2012. The panel will provide a copy of the decision to each of the parties, their counsel, and the District Offices serving T.G. and Ms. C., as well as the Minister's counsel.

(9) While the panel is in the process of making its decision, the Minister of Community Services shall continue to comply with the terms currently imposed on it by injunction, including the following: R.J. shall not be removed from the care of T.G.; and R.J. shall not be subjected to implementation of transition visits for the purpose of preparing him for adoption or placement with Ms.

C., it being acknowledged that this does not mean there could not be sibling contact. (10) 14 days after delivery of their decision to the parties, the injunction shall vacate upon the filing and issuance of an order to that effect which may be done by any of the counsel to this proceeding. [ 178 ] The remedy is largely consistent with that suggested by counsel for the Minister of Community Services, differing as follows: - The make-up of the panel I have commented on, indicating that it should not be solely adoption workers.

- My asking that they sign an affidavit confirming that there has been no previous involvement. Obviously given the nature of my decision here today, that is a concern. - Omitting the comprehensive plan of care that is referred to. I have not seen that, so I have not included that. - The timing of the submissions from Ms. G. and Ms. C. has been altered. Ms. G. and Ms. C. are busy professional single mothers. It is December 5th today. I do not believe I should be creating a scenario where they are expected to file documentation literally in the shadow of Christmas. Ms.

G. is to file submissions, not simply have her documents to June 22nd filed. Her submissions should be current, as should be Ms. C.'s. If I was to limit Ms. G. to the submissions she had made to June 22nd, I would ignore the fact that R.J. has continued in her care since then. - The panel will have the option of retaining an independent report. None of this panel will have had face-to-face contact with the parties or with R.J..

In my view, the panel should be independent and control its own process in this regard. [ 179 ] In setting an outside date for the receipt of decisions, I have attempted to be cognizant of timelines and delay. [ 180 ] The remedy I am suggesting or ordering differs from the submission of Ms. G. in that Ms. G. asked that an independent report be ordered to inform the panel. I have left that discretion to the panel. I hope I have made it clear that the panel would not be bound by the report, that it would inform the panel should it choose to secure one. [ 181 ] Ms.

C., in terms of remedy, largely supported the Minister's position. - The mandate given the committee should be to make a decision consistent with Section 3(2) of the Children and Family Services Act , and shall be provided with a copy of that provision, the Children and Family Services Act as a whole, and the Adoption Manual. [ 182 ] Finally, I have attempted to make this decision considering: (1) the process, not the result the Department of Community Services came to on June 22nd, 2011. R.J. has two exceptional homes who wish to care for him. I make absolutely no comment or observation beyond that.

(2) R.J. and the impact of delay. I have taken longer making my decision than I had planned or hoped. I am sorry for that. In setting the timelines for the new panel, I have attempted to balance R.J.'s needs and the desire to avoid delay and the need to give T. G. and R. C. an opportunity

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