) ) FAMILY, YOUTH v. CHILD SERVICES, 2010 ONSC 6018

CITATION : Family Youth & Child Services of Muskoka v. D.M. and C.M., 2010 ONSC 6018 DIVISIONAL COURT FILE NO.: 500/10 DATE: 20101028 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, SACHS AND NADEAU JJ. BETWEEN: ) ) FAMILY, YOUTH AND CHILD SERVICES OF MUSKOKA Applicant – and – D.M., C. M. AND THE CHILD AND FAMILY SERVICES REVIEW BOARD Respondents )) )) )) )) )))))))) Peter D. Marshall , for the Applicant J. David Harris-Lowe, for the Respondents D.M. and C.M.

Jennifer Scott , for the Respondent, The Child and Family Services Review Board ) ) ) HEARD at Toronto: October 28, 2010 SACHS J. (ORALLY) Nature of the Proceeding [ 1 ] This is an application for judicial review of a decision of The Child and Family Services Review Board (the “Board”) rescinding the decision of Family, Youth and Child Services of Muskoka (the “Society”) refusing the adoption application of D.M. and C.M. Background [ 2 ] D.M. and C.M. are the foster parents of two children, ages three and one and one-half at the time of the Board hearing in June 2010.

The children were placed with D.M. and C.M. in January 2009 when they were twenty-two months and four weeks respectively. They became Crown wards later in 2009, making them available for adoption. In the fall of 2009, D.M. and C.M. advised the Society that they wished to adopt the children. [ 3 ] Because D.M. and C.M. were approved foster parents, an Ontario reapplication homestudy report in the SAFE format was undertaken by a Society adoption worker on November 9, 2009.

Subsequently, the adoption manager of the Society, in consultation with the Director of Service, made the decision to refuse the adoption application of D.M. and C.M. The central reason for the Society’s decision was the conflict between D.M. and C.M. and their biological children. [ 4 ] D.M. and C.M. challenged the Society’s conclusion regarding the estrangement of D.M. from his biological children because they believed D.M.’s former spouse had engaged in parental alienation of his children. The Society agreed to a third-party assessment conducted by the Children’s Aid Society of the County of Simcoe (“Simcoe”).

In conducting its assessment, Simcoe had access to the Society’s homestudy for fostering, the case notes of the Society’s adoption worker and the draft homestudy of the Society on the adoption application. [ 5 ] Simcoe conducted its assessment in March 2010. On April 9, 2010, Simcoe made the decision to refuse the adoption

application of D.M. and C.M. The primary concern of Simcoe was D.M.’s estrangement from his biological daughters. The homestudy of Simcoe and the homestudy of the Society were both signed on May 17, 2010. [ 6 ] D.M. and C.M. filed an application before the Board to review the Society’s refusal decision on January 28, 2010.

The Legislative Context [ 7 ] The Board is a statutory tribunal that exercises jurisdiction under a number of statutes, including the Child and Family Services Act , R.S.O. 1990, c.11 (the “CFSA”). [ 8 ] The paramount purpose of the CFSA is to “promote the best interests, protection and well-being of children”. (s.1(1)). [ 9 ] In November of 2006, the Government of Ontario amended the CFSA to permit review by the Board of, among other things, a decision of a Children’s Aid Society to refuse an application to adopt a particular child made by a foster parent. Specifically, s.144(1) (

a) of the CFSA provides: This

section applies if: (

a) a society decides to refuse an application to adopt a particular child made by a foster parent, or other person. [ 10 ] The right to review provided for under s.144 is available in those situations where there is some form of relationship or connection between the adopted child and the potential adopted parents. It does not apply to a general pool of qualified adoption applicants, because they have not applied to “adopt a particular child”. [ 11 ]

Section 144 sets out the statutory process that must be followed on a review of a decision by a Children’s Aid Society to refuse an application to adopt a particular child. Under this process the Board first determines whether the decision is eligible for review and, if it is, a full oral hearing must take place before the Board.

The Statutory Powers Procedure Act , R.S.O. 1990, c.S-22 applies to the hearing. [ 12 ] The Board’s mandate at the hearing is set out in subsection 144(11) of the CFSA which provides as follows: 144(11) the Board shall, in accordance with its determination of which action is in the best interests of the child, confirm or rescind the decision under review and shall give written reasons for its decision. [ 13 ] In determining the child’s best interests, the Board must follow subsection 136(2) of the CFSA, which states: 136(2) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant: 1.

The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; 2. The child’s physical, mental and emotional level of development; 3. The child’s cultural background; 4. The religious faith, if any, in which the child is being raised; 5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family; 6. The child’s relationship by blood or through an adoption order; 7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. 8.

The child’s views and wishes , if they can be reasonably ascertained; 9. The effect on the child of delay in the disposition of the case; 10. Any other relevant circumstance. [ 14 ] Where a children’s aid society has refused an adoption application or has removed a child from an adoption placement, it cannot place the child for adoption with another person unless the time for reviewing the refusal decision has expired or the Board has confirmed the society’s refusal decision (CFSA, subsection 144(12)).

The Board’s Decision [ 15 ] The hearing in this case took place before the Board on June 1, 2, 29, 30 and July 7, 8, 9, 2010. Thirteen witnesses testified at the hearing, eight of whom were called by the Society. The Society also filed the affidavits of D.M.’s biological daughters about their estrangement from their father. They did not attend the hearing. The preponderance of evidence before the Board related to D.M. and C.M. as prospective adoptive parents and the best interests of their foster children. [ 16 ] The Board released its decision on August 5, 2010.

Based on all of the evidence before it, the Board decided that it was in the children’s best interests to be placed for adoption with D.M. and C.M. for the following reasons:

(

a) the children’s physical, mental and emotional needs were being met by D.M. and C.M.: the children blossomed in their care; (

b) the evidence about the children’s care by D.M. and C.M. was overwhelmingly positive; (

c) although the Society expressed concern about D.M.’s rigidity, both home studies assessed his “adaptability” as a “strength” or an“exceptional strength”; (

d) the Society did not listen to D.M.’s concern that his former spouse was influencing the estrangement of his children; (

e) D.M.’s estrangement from his daughters had only been for the past two years. Prior to that, he cared for his children, despite hisdisabilities, for seven years; (

f) D.M. and C.M.’s biological children were young adults and in the normal course of events, would not be living with the fosterchildren. C.M. mended her relationship with her two daughters and D.M.’s son moved back with him. D.M. was hoping to reconcilewith his biological daughters; (

g) the foster children lived with D.M. and C.M. for one and one-half years and formed an attachment to them. It was in thechildren’s best interests to maintain the bond and continuity of a secure home in which they flourished. The Society’s Position [17] The Society’s position on this application for judicial review is: (

i) That the Board’s jurisdiction under s.144 is limited to making determinations as to the fairness of the Society’s procedures inconsidering the adoption application. The Board has no jurisdiction to, in effect, substitute its own decision for that of a society. (ii) If the Board does have jurisdiction to make the decision that it did, the standard of review applicable to that decision iscorrectness. Even if the applicable standard of review is reasonableness, the decision in question was not reasonable. The Issues Raised [18] (

i) What is the Board’s mandate under s.144 of the CFSA? (ii) If the Board’s mandate extends to the right to make substantive decisions concerning the placement of children, what is thestandard of review applicable to the Board’s decision? (iii) Was the applicable standard met? The Board’s Mandate Under s.144 [19] The starting point for considering the mandate of any tribunal is the wording of the statutory provision conferring jurisdiction,since tribunals are creatures of statute and their powers derive from the statute only.

The statutory provision must be interpreted in lightof its plain wording, within the context of the overall scheme and purpose of the legislation. (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] S.C.J. No. 2 at paras. 20-23, 27). [20] In this case, the pertinent provision is s.144(11) of the CFSA, which states: “The Board shall, in accordance with itsdetermination of which action is in the best interests of the child, confirm or rescind the decision under review and shall give writtenreasons for its decision”. [21] The language of this

section expressly requires the Board to make a determination as to what action is in the best interests ofthe child. If the decision under review is a refusal of an adoption application, the action relates to the entire adoption applicationprocess, which involves a number of distinct steps.

Although action must be interpreted in the context of the decision under review(adoption application or removal from placement), it gives the Board broad authority to determine what should be done in the child’sbest interests within the confines of the decision/action under review. [22] The Board does not have parens patriae jurisdiction to determine best interests in relation to any action. Rather, itsdetermination is confined to the parameters of s.144.

Put simply, the Board must determine whether the adoption application orplacement is in the child’s best interests having regard to the criteria set out in s.136(2). If the adoption application or placement is inthe child’s best interests, the Board will rescind the Society’s refusal decision. If it is not, the children’s aid society’s decision will beconfirmed. [23] Support for this

interpretation can be found in subsections 144(12) and 144(13), which prevent a children’s aid society fromtaking a similar action (another adoption placement or removal from an adoption placement) pending either the expiry of the reviewperiod or confirmation of the society’s decision by the Board. [24] This

interpretation is also consistent with the underlying purpose of the CFSA, to promote the best interests, protection andwell being of children. It is also in keeping with the underlying purpose of the statutory amendments that resulted in s.144, which weredirected to establishing a process, via the Board, for independent review of certain decisions or actions of children’s aid societies. [25] The Society argues that the Board’s mandate is limited to ensuring procedural fairness.

In making this argument, it relies onthe predecessor s.144 and the current s.68. [26] Prior to the amendments to the CFSA in 2006, a Director appointed by the Minister conducted the review of a children’s aidsociety decision refusing to place a child for adoption. The Director had the authority to confirm the decision or to rescind it and to doanything further that the children’s aid society could do with respect to the placement of the child. The Society argues that, given the

absence of specific language giving the Board the power to substitute its decision for that of the Society, the Board has no such power. [27] We do not agree with this submission. First, the use of the word “action” bestows broad authority on the Board to determinebest interests within the parameters of the decision under review. Second, the comprehensiveness of the statutory review processsupports the Board making a substantive decision concerning the child’s best interests.

It is a complex quasi-judicial process that wouldnot be necessary if the Board’s mandate was restricted to ensuring procedural fairness in the Society’s adoption application process. Third, s.144 would not explicitly refer to the best interests of the child if it did not intend the Board to make a substantive “best interests”determination. [28] The Society, in support of its argument that the Board’s mandate is restricted to determining issues of procedural fairness, alsorelies on the Board’s role under s.68, as that role has been described by this Court in the Children’s Aid Society of Waterloo v.

D.D.[2010] ONSC 3328. [29] This argument ignores the clear distinction between s.68 and s.144.

Section 68 gives the Board the mandate to hear service-related complaints against children’s aid societies. The role of the Board under s.68 is to ensure that persons who receive services fromchildren’s aid societies are heard and given reasons for decisions that affect their interests. These are clearly procedural fairness rights. Furthermore, there is no reference in s.68 to the best interests of the child. [30] For these reasons, we reject the submission that the Board’s mandate is limited to ensuring that the society’s process inreaching its decisions concerning adoption applications was fair.

We find that the Board’s mandate when reviewing a decision of thesociety under s.144 is to determine which action is in the best interests of the child and to confirm or rescind the decision under review. Standard of Review [31] This Court recently discussed the standard of review applicable to decisions of the Board where they are reviewing a schoolboard’s expulsion decision. In Kawartha Pine Ridge District School Board v. Grant, 2010 ONSC 1205, we found that the standard ofreview was reasonableness.

In Kawartha Pine Ridge, the legislation contained a privative clause when it came to a decision of a schoolboard regarding expulsion. The CFSA contains no privative clause in relation to a decision of the Board under s.144. However, thestatute also does not provide for a right of appeal from that decision. [32] The second factor to consider under Dunsmuir v. New Brunswick (2008) 2008 SCC 9 , S.C.J. No. 9 is the purpose ofthe Board. The purpose of the CFSA is to “promote the best interests, protection and well-being of children”. Under its legislation, theBoard conducts a wide variety of reviews including: (

i) Review of certain complaints against children’s aid societies pursuant to sections 68 and 68.1 of the CFSA; (ii) Review of the children’s aid society decision to remove a Crown ward, where the child has resided continuously with the fosterparent for two years or more pursuant to s.61 of the CFSA; (iii) Review of emergency admission of a child to a secure treatment facility pursuant to s.124 of the CFSA; (iv) Review of a children’s aid society’s refusal of an application to adopt a child or a decision of a society or licensee to remove achild from an adoption placement pursuant to s.144 of the CFSA; (

v) Review of residential placements under s.36 of the CFSA; and (vi) Appeals of school board expulsion decisions pursuant to s.311.7 of the Education Act. [33] The purpose of s.144 is to provide an independent review of decisions made by children’s aid societies in relation toapplications to adopt particular children. The Board’s mandate is distinct and separate from the mandate of the court.

While the Boardhas the authority to decide whether the adoption application is in a child’s best interests, it is ultimately for the court to decide whetheran adoption order should be made. [34] The third factor to consider is the nature of the question before the Board. As already indicated, the Board was being asked toconsider what was in the best interests of the children. While this requires the Board to imply and interpret legislation, it isfundamentally a fact-driven process. Therefore, deference is required. [35] Finally, the expertise of the Board must be considered.

As discussed in Kawartha Pine Ridge at paragraph 28, members ofthe Board are required to possess certain qualifications. Thus, they have expertise when it comes to making decisions concerning what isor is not in a child’s best interests. [36] Taking into account the absence of an appeal right, the purpose of the Board, the nature of the question the Board wasconsidering, and the expertise of the Board, we find that the standard of review applicable to the Board’s decision is reasonableness. Was the Board’s Decision Reasonable? [37] In our view, the Board’s decision was reasonable.

It was justifiable, transparent and intelligible. The Board weighed theevidence and made certain findings of fact. It is not our job to re-try the case or re-weigh the evidence. [38] The Board’s decision to give no weight to the Affidavits of D.M.’s biological daughters was also a reasonable one.

Theevidence was highly prejudicial to D.M. and C.M. and the daughters were not available at the hearing to be cross-examined in a situationwhere issues had been raised that, if canvassed through cross-examination, could have affected both their reliability and credibility. [39] According to the Society, the Board’s decision creates a presumption that foster parents should be able to adopt the children intheir care unless the evidence demonstrates that there is some short term risk to the children posed by the adoption placement. We

disagree. The Board expressly considered the long-term risks posed to the children when making their decision and, in so doing, evaluated the Society’s concern about the children’s future when they become teenagers and exert their will.

In essence, the Board found that there was no reliable and credible evidence to support this concern and there was reliable and credible evidence to believe the opposite, most particularly, D.M.’s “remarkable adaptability” and ability to care for three children for a period of seven years on his own in spite of having been the victim of an accident that left him with some disabilities. [ 40 ] The Society also submitted that the Board’s decision was unreasonable because it has the effect of reducing, if not eliminating, the importance of the homestudy process. Again, we disagree.

The fact that the Board disagreed with the decision of the Society, who based their decision on the home studies, does not mean that the homestudy process has been undermined or eliminated. All it means is that the decisions made by the Children’s Aid Society in reliance on these home studies can be subject to review. Given the wording of s.144, this is the clear intention of the legislature.

The Effect of the Board’s Decision [ 41 ] Given the concerns raised by the Society and, to some extent, D.M. and C.M., it is important to note the effect of the Board’s decision. [ 42 ] Under s.144, the Board must decide whether the adoption application is in the child’s best interests. If it is, the child is placed for adoption for a minimum of six months. The child can be removed at any time during this probationary period, subject to a further right of review by the Board under subsection 144(1)(b). The approval of the adoption application and the adoption placement does not result in an adoption order.

The adoptive applicants must apply to the court to adopt the child. If the Society continues to believe the adoption is not in the children’s best interests, it can indicate that in the director’s statement filed with the court. The ultimate adoption decision is within the exclusive jurisdiction of the court. [ 43 ] In this case, the Board concluded their reasons by stating that they were rescinding the Society’s decision to refuse C.M. and D.M.’s application to adopt E. and M. They did not go on in the

section marked “Conclusion” to specifically state that the action required was that the Society was to place the children for adoption with D.M. and C.M.

However, in paragraph 6 of their reasons, the Board states as follows: [6] For the reasons that follow, the Board has determined that it is in E. and M.’s best interests to be placed with the Applicants for adoption and consequently, the Board rescinded the decision of the Society. [ 44 ] In paragraph 58 of their reasons, the Board refers to its “finding that it is in E. and M.’s best interests to be placed for adoption with the applicants” and in the penultimate paragraph of their reasons, (para. 62), the Board again states, “The Board finds that it is in the best interests of the children, E. and M. to be placed with the Applicants for adoption.” [ 45 ] For these reasons, we find that the effect of the Board’s decision is clear.

The children, E. and M. are to be placed with D.M and C.M. for adoption. Conclusion [ 46 ] The application for judicial review is, therefore, dismissed. SWINTON J. [ 47 ] I have endorsed the Application Record, “This application is dismissed for oral reasons given by Sachs J. Given that this is an adoption proceeding, and there is a significant amount of private information that would identify the family, and this information is not readily severable, an order is to go sealing the Court file, except for the reasons, which are to be produced with initials.

This order is without prejudice to an application to unseal the file on the basis that the file can be edited to remove any information that would identify the family. Balancing all of the considerations, we are of the view that costs should be payable by the Society to D.M. and C.M. in the amount of $7,500.00 all inclusive. The Board does not seek costs.” SACHS J. SWINTON J. NADEAU J.

Date of Reasons for Judgment: October 28, 2010 Date of Release: November 22, 2010 CITATION : Family Youth & Child Services of Muskoka v. D.M. and C.M., 2010 ONSC 6018 DIVISIONAL COURT FILE NO.: 500/10 DATE: 20101028 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, SACHS AND NADEAU JJ. BETWEEN: FAMILY, YOUTH AND CHILD SERVICES OF MUSKOKA Applicant – and – D.M., C.M. AND THE CHILD AND FAMILY SERVICES REVIEW BOARD Respondents ORAL REASONS FOR JUDGMENT SACHS J. Date of Reasons for Judgment: October 28, 2010 Date of Release: November 22, 2010