NOVA SCOTIA COURT OF APPEAL
Citation: Nova Scotia (Community Services) v. N.N.M.,
2008 NSCA 69
Docket: CA 294258
Registry: Halifax
Between:
Minister of Community Services
Appellant
v.
N. N. M. and R. D. M.
Respondents
Restriction on publication: Pursuant to s. 94 (1) of Children and Family Services Act
Judges: Cromwell, Hamilton & Fichaud, JJ.A.
Appeal Heard: June 13, 2008, in Halifax, Nova Scotia
Held: Appeal allowed per reasons for judgment of Hamilton, J.A., Cromwell & Fichaud, JJ.A. concurring
Counsel: James C. Leiper, for the appellant
Julia E. Cornish, Q.C. & Dorianne Mullin, for the respondents
Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act.
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:
94(1) 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 a relative of the child.
Reasons for judgment:
[1] This is an appeal by the Minister of Community Services [“MCS”] from the decision of Justice Mona M. Lynch which held that the MCS failed to meet the duty of fairness owed to the respondent foster parents when selecting, and subsequently reviewing her selection, of persons other than them to adopt two children in permanent care who were being fostered by the foster parents.
Facts
[2] The respondents have fostered children for the last five years. They knew from their training to become foster parents in 2003 that the MCS’s policy at that time was that foster parents were not eligible to be considered as potential adoptive placements. They knew that if they wanted to adopt they had to take a different program which they did not take. They did not become aware of the change in the MCS’s policy to allow fostering to adopt until the fall of 2007 during the circumstances giving rise to this appeal. At that point they commenced the required program to be approved as an adoptive home. The program takes some time to complete and includes an application, home approval and attendance at an adoptive parent course which they began attending in January 2008.
[3] Since September 21, 2006 the respondents have been the foster parents of siblings in the permanent care of the MCS who they wish to adopt, a five year old boy and his three year old sister. Both children were severely neglected and have significant developmental delays, including delays in speech development. The long term effects of the in utero maternal drug and alcohol abuse have yet to be determined.
[4] While there was conflicting testimony from the parties as to the nature, number and circumstances of conversations that took place, it is agreed that in January 2007, after the MCS decided to seek permanent care of the children, the social worker assigned to the children asked the foster mother at least once if the foster parents were interested in adopting the children. The foster mother indicated they were not interested.
[5] The social worker testified that there were other discussions with the foster mother in the spring and summer of 2007 about whether the foster parents wished to adopt the children and that the foster mother continued to indicate that she and her husband were not interested. The foster mother denies this. The judge made no finding with respect to this evidence.
[6] The MCS began considering potential adoptive placements for the children in April 2007. A team consisting of the social worker, her supervisor, an adoption worker, the supervisor of the Adoption Unit and the supervisor of the Foster Placement Unit met. As set out in ¶ 11 of the affidavit of the social worker sworn December 24, 2007, they developed a set of desirable criteria for an adoptive home based on the children’s specific needs:
(a) The adoptive home should include two parents, one of whom would be a “stay-at-home” parent with the children;
(b) A duel (sic) parenting home with both parents providing hands-on parenting of the children, sharing the responsibilities of two high needs children;
(c) The adoptive home be in a rural setting but close enough to the city core to allow access to services as the children had, in their early years, been confined to their rooms for a great deal of time;
(d) Adopting parents who were sophisticated enough to access the services required for two high needs children; and
(e) Adopting parents who had a large, extended support system available to them.
[7] The adoption team asked the social worker if the foster parents should be considered as a prospective adoptive placement. The social worker testified that she indicated that the foster parents should not be considered because (1) they had told her that they were not interested in adopting the children and (2) they did not meet several of the criteria identified as being desirable for an adoptive home for the children. She testified that the criteria not met by the foster parents were that both foster parents worked full-time outside the home, that the foster father did not provide much assistance with the care of the children, that they did not live in a rural setting and that the foster parents did not have an extended support system available.
[8] She also testified that she expressed her concern even in the short term about leaving the children with the foster parents given the foster mother’s repeated expressed frustration regarding the effort required to attend to the children’s special needs and with the foster mother’s repeated offer to adopt the male child only. The foster mother denied she offered to adopt only the boy. The judge made no finding on this.
[9] The adoption team agreed that the foster parents should not be considered further and that the adoption workers would look for prospective adoptive homes that matched the identified criteria. By June, ten potential adoptive homes had been identified, an adoptive home selected and the selected prospective adoptive parents informed.
[10] The hearing to determine the MCS’s application for permanent care and custody of the children was first scheduled for May 2007, took place at the end of July and the beginning of August 2007 and the order granting permanent care and custody to the MCS was issued September 21, 2007. Despite the fact that the permanent care order was appealed, the MCS intended to immediately transition the children to the selected prospective adoptive home because she did not feel there was much chance of the appeal succeeding.
[11] This planned transition was put on hold because the day after the foster parents were informed that the children had been placed in the permanent care of the MCS and would be immediately transitioned to the previously approved prospective adoptive home, they told the social worker for the first time that they were interested in adopting the children. By this time the foster parents had made no effort to become an approved adoptive home. The social worker informed them that the MCS would reconsider her decision in light of their request.
[12] The adoption team reconvened on October 11, 2007. The foster parents made no request to provide input with respect to the reconsideration and their input was not sought. At the conclusion of the meeting the team agreed that the prospective adoptive parents selected in June were still the best match given the criteria identified as being best for the specific needs of the children.
[13] On October 16, 2007 the social worker met with the foster mother and informed her of the team’s decision. She outlined the reasons for the decision including reference to the identified criteria referred to in ¶ 6 above. Because the foster father was unable to attend this meeting, the social worker met with both foster parents again on November 21, 2007. The foster parents indicated their disagreement with the MCS’s decision.
[14] By this time, the MCS had consulted with a clinical psychologist for advice about how to best transition the children to the prospective adoptive home given the position taken by the foster parents. Based on this advice, a modified transition process took place in November and December 2007 where the children visited the prospective adoptive home but did not stay overnight.
[15] Also by this time, the foster parents had contacted the Foster Family Federation of Nova Scotia and had written letters to the following individuals within the hierarchy of the MCS seeking to become the adoptive parents of the children:
(1) two supervisors in the office of the social worker;
(2) Regional Administrator for the Central Region; and
(3) Director of Child Welfare for the Province.
[16] Midway through their letter-writing, the foster parents obtained a pamphlet produced by the MCS entitled “When You Disagree ...”, which outlined a five-step process to be followed when persons are unhappy with services being provided by the MCS. The process begins with a discussion with the social worker, followed by a meeting with the Case Supervisor and the social worker, followed by a review by the District Manager, a review by the Regional Administrator and finally a review by the Director of Child Welfare, with short time limits set for the last four of these persons to provide written reports of their decisions.
[17] The parties agreed that the letters written by the foster parents roughly corresponded to the process set out in the pamphlet except that the foster parents did not meet with the Casework Supervisor. There was no suggestion that the procedure set out in the pamphlet was not the normal procedure followed by the MCS in situations such as this even though the wording of the pamphlet indicates it applies to disputes concerning services. There is no requirement in the Act for an administrative review of the MCS’s selection of an adoptive home. Counsel for the MCS indicated that the review procedure set out in the pamphlet is applied as a courtesy.
[18] In their November 19, 2007 letter to the Regional Administrator, among other things, the foster parents indicated the bonding between themselves and the children and their love for them and indicated:
. . . We want to be given a fair chance to adopt [the children]. We feel that a face-to-face meeting with my husband and I would have been a chance for us to explain ourselves and give our reasons in person to how important [the children’s] well being and future mean to us. . . .
[19] No offer was made to meet with them.
[20] In response to the foster parents’ letters internal actions were taken by the MCS. A child welfare specialist in the Department of Community Services reviewed the foster care files, the adoption records, the child protection records in relation to the children and the correspondence on the matter, asked questions of workers in the Department and prepared a Briefing Note. The Briefing Note outlined the circumstances of the children and the foster parents, the process followed in determining the best adoptive home for the children and the current status and recommended that the original decision to place the children in another adoptive home stand.
[21] After referring to the Briefing Note, the Regional Administrator wrote to the foster parents by letter dated December 6, 2007 and indicated that a careful review had been done which supported the original decision.
[22] Before the Director of Child Welfare responded to the foster parents she consulted with the Manager of Adoption Services. The Manager independently reviewed the child protection file, foster family file, adoption minutes, Briefing Note, other agency documents and materials provided by the foster parents and found that the best interests of the children had been the paramount consideration in all earlier decisions and indicated that she supported the original decision.
[23] By letter to the foster parents dated December 12, 2007 the Director indicated another review had been conducted and had confirmed that the appropriate process had been followed and that the original prospective adoptive placement best met the special needs of the children. It also indicated that it was the final step in the review process.
[24] The day after the foster parents received the Director’s letter, they were told that the MCS intended to proceed immediately to transition the children to their prospective adoptive home. On December 14, 2007 the children were taken from the foster parents’ home. The foster parents were told the children may or may not return that night depending on how things went at the prospective adoptive home. The children did not return that night.
[25] On the same day the foster parents applied for leave to apply for custody of the children under s. 18 of the Maintenance and Custody Act, R.S.N.S. 1989, c.160 (“MCA”) on an emergency basis. When the parties first appeared in court on the matter on December 18, 2007, the foster parents indicated that if there was no basis for their application for custody under s.18 of the MCA, that the court had authority under its parens patriae jurisdiction to grant them relief. They requested an interim order that the children be returned to live with them pending the full hearing of their application.
[26] The MCS challenged the judge’s jurisdiction and the formalities or lack thereof by which the issues were brought before her but indicated that if the judge was going to proceed with the full hearing of the foster parents application she was prepared to do so later that week. The foster parents sought and obtained a date for the full hearing in January 2008 to allow them time to obtain additional material. The judge made an interim order that the children be returned to live with the foster parents until the full hearing.
[27] The MCS appealed the judge’s interim order. This Court’s decision in that appeal is being released simultaneously with this decision (Nova Scotia (Minister of Community Services) v. N.N. M., 2008 NSCA 70). In that decision this Court found the appeal of the judge’s interim order moot in light of the judge’s decision which is the subject of this appeal.
[28] During the full hearing in January/February 2008, the judge dismissed the foster parent’s application for custody under the MCA at the conclusion of their evidence. The proceeding continued on the sole issue of whether the court should grant custody or adoption to the foster parents pursuant to its parens patriae jurisdiction either on the basis that there was a gap in the legislation or on the basis that the MCS did not meet the duty of procedural fairness owed to the foster parents when selecting the best adoptive home for the children.
[29] In early February 2008 the appeal of the permanent care order was dismissed by this Court leaving the children in the permanent care of the MCS.
Decision Under Appeal
[30] The judge rendered her decision on the merits of the foster parents’ application on March 10, 2008. She exercised her parens patriae jurisdiction to judicially review the procedural fairness of the process followed by the MCS in selecting the prospective adoptive home for the children and in reviewing it.
[31] Focussing on the importance of the decision to the foster parents and their expectation of an open and full review process in the fall of 2007, the judge found that the MCS had breached her duty of procedural fairness to the foster parents in two ways.
[32] First, by not offering to meet with the foster parents during the review process to obtain their input into her decision:
[64] The meeting with the social worker was not a meeting to obtain the views of the foster family to help in reconsidering the decision. It was not a meeting to take information from the foster parents back to the decision‑makers in the Department of Community Services. The meeting was to inform the foster parents why they were not chosen and to tell them that the decision had been affirmed. The foster parents did not participate or have input into the original decision making process. They were not informed of the meeting in early April to plan for adoption placement of the children. When they expressed their desire to adopt the children in late September they were not invited to attend, provide information or participate in any way in the adoption planning meeting that took place in the early part of October.
[65] When it was clear that the foster parents disagreed with the placement decision, they were not provided with the policy and procedure to follow for review. The second step in the "when you disagree" policy was a meeting with the Casework Supervisor. As the foster parents were not aware of the policy they never had a meeting with any of the decision‑makers after the social worker. A face‑to‑face meeting with the foster parents may have helped to clear up some of the inaccurate information considered by the decision‑makers. The MCS submits that the foster parents should have asked for a meeting. In the foster parents' letter of November 19, 2007 to the Regional Administrator they express the view that a face‑to‑face meeting would have been a chance to explain themselves. The MCS should have offered to meet with the foster parents. (Emphasis added)
[33] Second, by not disclosing to the foster parents the facts about them that she would rely on in reaching her decision so that they would have had the opportunity to correct any misinformation:
[66] The foster parents were never made aware of the information that had been provided to decision‑makers about them. There was information provided to the decision‑makers which was inaccurate. The decision‑makers were told that the little boy was not toilet trained. He was toilet trained. The decision‑makers were told that the foster father worked out of the area and was only home on the weekends. The foster father changed jobs in October 2007. This cut his travel down significantly. The foster father's new position is in management which requires him to delegate persons for the job he previously did and which required extensive travel. This change in jobs for the foster father has considerably increased his time at home and his ability to share in parenting. The decision‑makers were not aware of this change in relation to the foster father. The foster parents disagreed with the information given to the decision‑makers about the extent to which the foster father was involved in the parenting of the children. The foster parents say that the foster father is involved in parenting the children. The foster parents described a support network in their testimony, but the MCS expressed concern about a lack of a support system.
[67] Because the foster parents were not made aware of the information provided to the decision-makers they did not have the opportunity to correct the misinformation.
[34] The judge then concluded:
[70] The decision‑makers made a decision they believed to be in the best interests of the children, however, the decision was with some misinformation and without input from the people who knew the children the best – the foster parents. The children have been living with these foster parents for a significant part of their lives. The MCS could not properly exercise their discretion without accurate information and meaningful input from the foster parents.
[71] The parents were not given a meaningful opportunity to participate in the process which rejected them as adoptive parents to the children. The foster parents' position was not fully and fairly considered. It is in the best interests of the children that the foster parents' request to adopt the children be fully and fairly considered with proper input and participation. I find that the decision‑making process and the review of the decision‑making process [were] unfair to the foster parents. The decision from this unfair process is invalid. (Emphasis added)
[35] Finding that she did not have sufficient evidence before her to decide custody or adoption, the judge ordered:
2. The decision with respect to the most appropriate adoptive home shall be made with full information and input from all concerned parties, including [the foster parents].
3. Pending a determination as to the best adoptive home for the children, the children shall remain in the care of the foster parents. . . .
Issue and Standard of Review
[36] The MCS appealed the judge’s decision on several grounds. It is only necessary for me to deal with two to resolve the appeal:
1. Did the judge err in finding she had parens patriae jurisdiction to judicially review the process followed by the MCS in reaching her decision to see if it was procedurally fair?
2. Was the judge correct in finding the MCS did not meet the duty of procedural fairness she owed to the foster parents when selecting the best adoptive home for the children?
First Issue
[37] Little needs to be said with respect to the first issue. The standard of review was correctness and the judge was correct when she found she had parens patriae jurisdiction to review the process followed by the MCS in reaching her decision. This is clear from Beson v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716 where the Supreme Court of Canada states at p. 724:
It would seem then that in England the wardship jurisdiction of the court (parens patriae) has not been ousted by the existence of legislation entrusting the care and custody of children to local authorities. It is, however, confined to "gaps" in the legislation and to judicial review. . . .
[38] The judge acknowledged there was no “gap,” and her decision proceeded on the basis of Beson's second alternative, judicial review for suggested breach of the MCS's “duty of procedural fairness.”
Second Issue
[39] The second issue relating to procedural fairness involves an assessment of the process that led to the MCS’s decision as opposed to the decision itself. As stated in Provincial Dental Board v. Creager, 2005 NSCA 9, the courts decide whether the MCS violated her duty of procedural fairness to the foster parents without deference to the MCS’s decision:
[24] Issues of procedural fairness do not involve any deferential standard of review: Conseil de la magisrature (N.-B.) v. Moreau‑Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R. (2d) 201; 636 A.P.R. 201, at para. 74 per Arbour, J.; Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 386, at paras. 100‑103 per Binnie, J., for the majority and at para. 5, per Bastarache, J., dissenting. As stated by Justice Binnie in C.U.P.E., at para. 102:
“The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.”
This point is also clear from Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22. Justice L'Heureux‑Dubé (paras. 55‑62) considered "substantive" aspects of the tribunal's decision based on the standard of review determined from the functional and practical approach but (para. 43) considered procedural fairness without analyzing the standard of review.
[25] Procedural fairness analysis may involve a review of the statutory intent and the tribunal's functions assigned by that statute: e.g. Bell Canada v. Canadian Telephone Employees Association et al., [2003] 1 S.C.R. 884; 306 N.R. 34, at paras. 21‑31; Compagnie pétrolière Impériale ltée v. Québec (Ministre de l’Envioronment), [2003] 2 S.C.R. 624; 310 N.R. 343, at paras. 31‑32. But, once the court has determined that a requirement of procedural fairness applies, the court decides whether there was a violation without deference.
[40] The issue on this appeal, determining the scope of the duty of procedural fairness, is a question of law, for which this court’s appellate standard of review is correctness. However, as I shall explain, this review does not involve a simple comparison between the process followed by the MCS and court procedures. Where, as here, a decision‑maker is given broad discretion to determine its procedures in exercising a broadly conferred discretion, the decision‑maker's perspective and the whole context of the proceeding should be taken into account; court procedures are not necessarily the gold standard for this review.
[41] The duty of procedural fairness may be engaged whenever a person’s rights, privileges or interests are affected by an administrative decision. The Supreme Court stated in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 at 653 and confirmed in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at ¶ 20:
The fact that a decision is administrative and affects ‘the rights, privileges or interests of an individual’ is sufficient to trigger the application of the duty of fairness . . .
[42] The MCS conceded that a duty of fairness was engaged given the pre-existing relationship between her, the children and the foster parents but says it does not include the participatory rights of disclosure and a meeting to give the foster parents an opportunity for meaningful input into the selection process as found by the judge. In light of this position, I have assumed without deciding that a duty of fairness existed in the circumstances of this case. Therefore the question before us is whether the duty of fairness owed by the MCS to the foster parents in the circumstances of this appeal included the right of disclosure and a meeting.
[43] The nature of the duty of fairness is flexible and variable. It depends on the specific facts in each case. The Supreme Court of Canada stated in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at p. 682:
Like the principles of natural justice, the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. In Nicholson, supra, at pp. 326‑27, Laskin C.J. adopts the following passage from the decision of the Privy Council in Furnell v. Whangarei High Schools Board, [1973] A.C. 660, a New Zealand appeal where Lord Morris of Borth‑y‑Gest, writing for the majority, held at p. 679:
Natural justice is but fairness writ large and juridically. It has been described as “fair play in action”. Nor is it a leaven to be associated only with judicial or quasi‑judicial occasions. But as was pointed out by Tucker L.J. in Russel v. Duke of Norfolk [1949] 1 All. E.R. 109, 118, the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration. [Emphasis added.]
This was underlined again very recently by this Court in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), supra, where Sopinka J. wrote for the majority at pp. 895‑96:
Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provision and the nature of the matter to be decided. The distinction between them therefore becomes blurred as one approaches the lower end of the scale of judicial or quasi‑judicial tribunals and the high end of the scale with respect to administrative or executive tribunals. Accordingly, the content of the rules to be followed by a tribunal is now not determined by attempting to classify them as judicial, quasi‑judicial, administrative or executive. Instead, the court decides the content of these rules by reference to all the circumstances under which the tribunal operates. [Emphasis added.]
See also Baker, supra, at ¶ 21.
[44] Given that the nature of the duty of fairness is flexible and variable it is necessary to determine its nature in the particular circumstances of this appeal. Baker, supra, sets out five non-exhaustive factors that a court should consider when determining this:
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;
4. the legitimate expectations of the person challenging the decision; and
5. the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances.
[45] The judge briefly referred to Baker, supra for this purpose:
[63] In determining whether the foster parents were treated fairly, I must consider this specific case (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). The process of decision‑making in the MCS is not close to the judicial process. It is more relaxed. Expertise and discretion are both factors to consider. The overall scheme in child welfare is guided by the principle of the best interests of children. The importance of the decision made to the foster parents is enormous. It is a decision as to whether they will be the parents of the children. Foster parents are trusted to look after vulnerable children in the care of the MCS. The foster parents expected that their position would be considered openly and fully when they were pursuing the review process in the Department of Community Services. There is no procedure in the CFSA for reviewing placement decisions and no appeal process for the foster parents. The only policy is the "when you disagree" policy. In Baker at paragraph 28 L'Heureux‑Dube says:
The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.
It cannot be said that with the importance of this decision to the foster parents that the duty of fairness is minimal. As stated in Baker at paragraph 32:
Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. (Emphasis added)
[46] Other than the above, the judge did not explain what factors referred to in Baker, supra, led her to the conclusion that the MCS breached the duty of fairness she owed to the foster parents by not disclosing information to them and by not meeting with them. She did not analyse the nature of the decision being made by the MCS or its statutory and social context which in this appeal is so important.
[47] I agree with the judge’s statement that the process to be followed by the MCS in selecting the adoptive parents is not close to a judicial process and that the paramount consideration throughout is the best interests of the children. With respect, I do not agree that the effect of the MCS’s decision on the foster parents or their subjective expectations required the MCS to do more than she did; that they required her to disclose additional information to them or to meet with them so that they could have meaningful input into the selection process.
[48] Before considering the factors set out in Baker, supra, it is important to remember that it is the best interests of the children that is the paramount consideration for the MCS in determining the process to be followed in selecting an adoptive home, in making the selection and in reviewing her decision if necessary.
[49] This is indicated by s.2(2) of the Children and Family Services Act, R.S.N.S. 1990, c.5, (“CFSA”):
2 (2) In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child.
[50] As the best interests of the children is the paramount consideration for the MCS, the interests of others such as the foster parents, including their rights to procedural fairness, will by definition be secondary to this paramount consideration.
[51] This was recognized in B. v. A (1988), 13 R.F.L. (3d) 209 (ONHCJ):
Further, the Act is replete with references to the fact that decisions under it are to be made in the best interests of the child. Thus, while the B family may have felt that it was dealt with unfairly in the handling of its adoption application, Denov recognized that this was not the primary issue in her review:
In reaching a final determination in this case it is important to recognize that the issue at hand is the best interests of the infant "K". While the Children's Aid Society of the Durham Region may have allowed omissions and inconsistencies in the handling of Mr. and Mrs. B's application, the decision as to where the child is placed must focus not on that issue but on the best interests of the child.
It is important to recognize that while both families may be good prospective adoptive families, the decision must rest on what is best for the infant, not on what is best for the prospective adoptive families, no matter how difficult this process has been or may be for them.
[52] This principle was also recognized in A.I. v. Ontario (Director, Child and Family Services Act) (2005), 75 O.R. (3d) 663, where the foster parents applied for judicial review after the Agency declined to place a child in their care with them for adoption. The court acknowledged that Baker applied, but situated its application within the best interests inquiry:
60. The principles in Baker include the statement that the procedure should be appropriate to the decision being made and its context. This case is about the best interests of the child and that is the context which must inform decisions on [the admissibility of] evidence such as this one.
[53] Although Justice L’Heureux‑Dubé’s comments are made in the child protection context in Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48 at ¶ 94, I think they are equally applicable here:
. . . Given that children are highly vulnerable members of our society, and given society’s interest in protecting them from harm, fair process in the child protection context must reflect the fact that children’s lives and health may need to be given priority where the protection of these interests diverges from the protection of parents’ rights to freedom from state intervention.
[54] See also King v. Low, [1985] 1 S.C.R. 87 at ¶ 27 and Children’s Aid Society of Metropolitan Toronto v. Dizio [1990] O.J. No. 1335 (HCJ) at ¶ 8.
[55] Section 3(3) of the CFSA requires that certain factors must be considered by the MCS when determining the best interests of children for adoption purposes if they are relevant:
(a) the importance for the child's development of a positive relationship with a parent or guardian and a secure place as a member of a family;
(b) the child's relationships with relatives;
(c) the importance of continuity in the child's care and the possible effect on the child of the disruption of that continuity;
(d) the bonding that exists between the child and the child's parent or guardian;
(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;
(g) the child's cultural, racial and linguistic heritage;
(h) the religious faith, if any, in which the child is being raised;
. . .
(j) the child's views and wishes, if they can be reasonably ascertained;
(k) the effect on the child of delay in the disposition of the case;
. . .
(n) any other relevant circumstances. (Emphasis added)
[56] The highlighted considerations are the ones that are relevant in the circumstances of this appeal: the effect on the children of being separated from the foster parents, their physical, mental and emotional needs and development levels and the effect of delay on the children.
[57] Keeping the best interests of the children at the forefront we must consider the factors set out in Baker, supra.
[58] The first factor referred to in Baker, supra, is the nature of the decision being made. Here the decision being made by the MCS was the selection of the adoptive parents for the children. The responsibility to make this decision for children placed in her permanent care is placed on her by the CFSA. The responsibility did not arise from an application by the foster parents for a licence or other benefit for example. This was a sensitive and personal decision that had to be made with the particular needs of the children of primary importance. If their needs were met by the adoptive parents it would help ensure a successful adoption placement and avoid further upheaval in their young lives. Adoption promotes their best interests.
[59] The selection of adoptive parents is not one that lends itself to one right answer and yet not every person wishing to adopt will be the right choice. Many factors must be weighed in making the selection because of the differing needs and circumstances of children and the varied abilities and attributes of persons wishing to adopt. If adoption planning is started in a timely fashion, as it was in this case, it is a decision that can be made when the MCS has more time to consider alternative placements that can best meet the children’s needs than may be the case with foster placements that often have to be made under pressing circumstances, which the social worker testified was the case here.
[60] The decision affects many people with competing interests because of the large number of people wishing to adopt. It affects children in need of a permanent family, foster parents wishing to adopt, selected adoptive parents and persons wishing to adopt who are not selected. It is important to society generally that vulnerable children are placed quickly in a permanent home that will enable them to reach their maximum potential. This wider social context must be taken into account in determining the content of the duty of care owed by the MCS to the foster parents. If participatory rights are granted to foster parents, they may also be appropriate for others with interests in the adoption process. This would slow the adoption process down significantly which would not usually be in the best interests of children.
[61] In Canadian Child Welfare Law Children, Families and the State, 2nd ed. (Toronto: Thompson Educational Publishing, Inc., 2004), Nicholas Bala, Michael Kim Zapf and R. James Williams describe the selection of adoptive parents at p. 170:
The process that ultimately leads to the selection of an appropriate adoptive family for a child is complex. It involves matching the parents’ fitness to assume parenting responsibilities for a child not born to them with the child’s suitability for such parenting. It is, in a sense, simulating a role usually reserved for nature. It is an awesome responsibility. (Emphasis added)
[62] The nature of the decision being made by the MCS in this appeal suggests minimal participatory rights for the foster parents given the large number of people interested in the decision and the need to make it relatively quickly in the best interests of the children.
[63] The second factor referred to in Baker, supra, is the statutory scheme in which the decision is to be made. Here the CFSA gives the MCS broad discretion to select the adoptive parents, to determine the process she will follow in doing so and to review her decision if necessary.
[64] Other than requiring her to make her selection in the best interests of the children, the CFSA does not prescribe a procedure for her to follow in making her selection or in reviewing it, leaving the process for her to determine. There is no requirement that she disclose information to foster parents or meet with them to provide them with a meaningful opportunity to participate in the selection process.
[65] The eighth paragraph in the preamble to the CFSA indicates she is to make decisions regarding children as a wise and conscientious parent:
AND WHEREAS when it is necessary to remove children from the care and supervision of their parents or guardians, they should be provided for, as nearly as possible, as if they were under the care and protection of wise and conscientious parents;
[66] Once a child is placed in her permanent care, she is the child’s legal guardian with all the powers and responsibilities of a parent:
47 (1) Where the court makes an order for permanent care and custody pursuant to clause (f) of subsection (1) of Section 42, the agency is the legal guardian of the child and as such has all the rights, powers and responsibilities of a parent or guardian for the child's care and custody. (Emphasis added)
[67] The CFSA provides that the MCS, and only she, can consent to the adoption of a child in her permanent care:
74 (7) No order for the adoption of a child in care of the Minister shall be made without the written consent of the Minister and no order for the adoption of a child in care of an agency shall be made without the written consent of the agency or the Minister.
74 (8) . . . where a child proposed to be adopted is a child in care, the written consent of the agency or the Minister is the only consent required. . . .
[68] The effect of this is that persons who are not approved by the MCS cannot adopt a child in her permanent care.
[69] In the adoption context, the case law shows that courts are reluctant to interfere with the discretion of the MCS. In many cases, courts have declined to get involved in the MCS’s placement decisions with particular individuals, absent evidence of bad faith or unfairness; See Nova Scotia (Minister of Community Services) v. L.W. (2006), 272 D.L.R. (4th) 114 (S.C.); H.C. v. New Brunswick (Minister of Family and Community Services), 2003 NBQB 196; T.O.K. v. British Columbia, 2003 BCSC 1248.
[70] The responsibility and discretion given to the MCS by the CFSA has been recognized by this Court in Family and Children’s Services of Kings County v. D.R. et al. (1992), 118 N.S.R. (2d) 1 (NSCA):
[60] . . . With respect, the selection of the most suitable adoptive parents is the function of the agency under the Act and not that of the court.
[71] The general discretion of the MCS was also recognized in I.C. v. Children’s Aid Society of Shelburne County et al., [2001] N.S.J. No. 260, (NSCA) along with the supervisory jurisdiction of the court:
[36] Generally, once a permanent care order is made, all decisions affecting the child are within the discretion of the Agency. This is so because the Agency then stands in the place of the parents:
. . .
[54] . . . generally, the Agency decisions about placement of a child in permanent care should be respected and free from court intervention. In circumstances such as these, however, where the Agency has lost confidence in a family intended to be adoptive or long term, it may be appropriate for the court to exercise supervisory jurisdiction. . . .
[72] Giving deference to the MCS’s 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 and achieving stability for the children involved in the process would inevitably take longer and be more complicated.
[73] The same statute that leaves the process for selecting the adoptive home and reviewing it if necessary to the MCS, subject only to the best interests of the children, and that gives the MCS discretion equivalent to that of a parent in selecting adoptive parents creates only limited rights for foster parents despite their crucial role in providing temporary care for children in need of protection. The legislature has to a large extent left it to the MCS to determine the relationship between her, foster parents and children contractually.
[74] Under the CFSA the initial placement of children with foster parents is at the discretion of the MCS as is any subsequent move to another foster home. The CFSA does not provide a procedure for foster parents to have any input into these decisions. In this respect the CFSA is similar to the child protection statutes in provinces such as British Columbia (Child, Family and Community Service Act, RSBC 1996, c. 46), New Brunswick (Family Services Act, S.N.B. 1980, c. F-2.2) and Newfoundland (Child, Youth and Family Services Act, SNL 1998, c. C-12.1) but differs from the child protection statutes in other provinces such as Ontario (Child and Family Services Act, R.S.O. 1990, c. C11, s. 61(7), Manitoba (Child and Family Services Act, C.C.S.M. c. C80, s. 51) and Alberta (Child, Youth and Family Enhancement Act, R.S.A. 2000, c. C-12 s. 23(1), 117.1(1)). The child protection statutes in Ontario, Manitoba and Alberta provide to varying degrees for notice to foster parents of planned moves and for administrative reviews of those decisions if requested by the foster parents, provisions not found in the CFSA. Due to the differences in the child protection statutes in different provinces, cases from other jurisdictions are often distinguishable.
[75] The CFSA specifically excludes foster parents from the definition of “parent” for purposes of the adoption process in the same way they are explicitly excluded from the definition of “parent or guardian” for the purpose of automatically having standing in protection hearings; s.67(1) and 3(1)(r).
[76] Foster parents have limited rights to participate in proceedings where other persons’ interests are at issue by virtue of s. 36(4) if they have had care of a child for the preceding six months, as the foster parents did in this case:
36 (4) On a hearing to review a disposition order pursuant to Section 46 or on an application to terminate, or vary access under, an order for permanent care and custody pursuant to Section 48, a foster parent, who has cared for the child continuously during the six months immediately before the hearing or application,
(a) is entitled to the same notice of the proceeding as a party;
(b) may be present at the hearing;
(c) may be represented by counsel; and
(d) may make submissions to the court,
but shall take no further part in the hearing without leave of the court.
[77] Foster parents can apply to the court for leave to be added as an independent party to a child protection proceeding under s. 36(1)(f):
36 (1) The parties to a proceeding pursuant to Sections 32 to 49 are
(a) the agency;
(b) the child's parent or guardian;
(c) the child, where the child is sixteen years of age or more, unless the court otherwise orders pursuant to subsection (1) of Section 37;
(d) the child, where the child is twelve years of age or more, if so ordered by the court pursuant to subsection (2) of Section 37;
(e) the child, if so ordered by the court pursuant to subsection (3) of Section 37; and
(f) any other person added as a party at any stage in the proceeding pursuant to the Family Court Rules. (Emphasis added)
[78] An example of a foster parent being added as an independent party under s. 36(1)(f) for the purpose of applying to terminate a permanent care order and seek custody of their foster child is the case of I.C., supra. The circumstances of that case were unusual. There the child, with severe physical and emotional challenges, was placed with the foster parents when she was eleven hours old, the biological parents consented to a permanent care order on condition the foster parents would adopt the child, the foster parents agreed, the foster parents were approved to adopt the child, they provided exemplary care to the child, the adoption did not proceed in a timely fashion due to an unexplained delay by the child protection agency and the agency subsequently withdrew its consent for the foster parents to adopt on becoming aware of a previous affair between the foster mother and her father-in-law. These circumstances differ significantly from those in the present appeal where the children were placed with the foster parents on a temporary basis only and where the foster parents did not take the necessary steps that they knew they had to take in order to become an approved adoptive home.
[79] Thus while the CFSA provides some rights to the foster parents they are limited.
[80] In addition to the broad discretion given to the MCS and the limited rights given to foster parents, the CFSA focusses on timeliness. It strictly limits the time that may elapse from the time a child is thought to be in need of protection until the adoption is complete if it is found that the child cannot be returned to his or her biological parents.
[81] The ninth paragraph of the preamble to the CFSA directs respect for a child’s sense of time in proceedings under the CFSA:
AND WHEREAS children have a sense of time that is different from that of adults and services provided pursuant to this Act and proceedings taken pursuant to it must respect the child's sense of time;
[82] Timeliness is one of the factors s. 3(2)(k) requires the MCS to consider when determining the best interests of the children in the adoption context:
(k) the effect on the child of delay in the disposition of the case;
[83] Other sections of the CFSA enforce this theme by mandating short, strict time frames for court proceedings. For example, s. 39(1) requires that the interim application to determine if there are reasonable and probable grounds to believe that a child is in need of protective services must be commenced within five working days after an application is made or a child is taken into care and s. 39(4) requires that the interim hearing be completed within 30 days. Section 40(1) provides that the protection hearing must then be held within 90 days. Section 49(4) provides that an appeal must be heard within 90 days of the filing of the notice of appeal or such longer period not to exceed 60 days. Further sections limit the time within which applications for access to children in care and termination of a permanent care order may be made once a notice of adoption is filed; s. 47(3) and s. 48(4) and (6).
[84] The importance of timeliness was noted by Justice L’Heureux Dube in Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., [1994] 2 S.C.R. 165, at p. 206:
. . . The passage of time in matters of child custody and welfare over extended periods may, unfortunately, carry a heavy burden for all concerned. This is recognized by the Act in that a number of provisions mandate the timely resolution of cases and impose time limits on Children's Aid Society involvement with a family. . . .
. . .
I share Macdonald's J.'s concerns with regard to the importance of reaching a speedy resolution of matters affecting children. The Act requires it and common sense dictates it. A few months in the life of a child, as compared to that of adults, may acquire great significance. . . . (Emphasis added)
[85] As set out above s. 3(2)(k) indicates timeliness is a consideration when determining the best interests of children. The foster parents’ challenge to the MCS’s decision in this appeal has caused a delay of almost one year in the adoption of the young children despite the best efforts of the judge and this Court to expedite the process. There is nothing in the CFSA to suggest that in the circumstances of this case such a delay is in the children’s best interests.
[86] The scheme of the CSFA providing a broad discretion to the MCS, equivalent to that of a parent, limited rights to foster parents and strict time limits for dealing with children, indicates minimal procedural rights for foster parents. Higher procedural protections (such as greater participatory rights to foster parents, or a formalized, more judicialized decision-making process) inevitably result in delay and therefore would not usually accord with a child’s best interests.
[87] With respect to the third factor referred to in Baker, supra, the judge appears to have focussed only on the importance of the MCS’s decision on the foster parents to the exclusion of others, notably the children. She states:
[63] . . . The importance of the decision made to the foster parents is enormous. It is a decision as to whether they will be the parents of the children. . . . It cannot be said that with the importance of this decision to the foster parents that the duty of fairness is minimal. . . .
[88] There is no question that the MCS’s decision is enormously important for the foster parents. They have given five years of their lives to the care of vulnerable children. Their commitment is most admirable. Their emotional attachment is understandable. They have come to love the two children now in their care and want to make them part of their family. The importance of the MCS’s decision to them however is not the focus for the MCS or for the court.
[89] Given the nature of the decision being made and the paramount consideration that the process followed and the selection made be in the best interests of the children, it is the importance of the decision to the children not to the foster parents that should be the focus of attention. They are the vulnerable ones in the process whose permanent home is being decided by the MCS. It is their well being that gives rise to the decision having to be made. It is important the decision be made considering the effect on them of being separated from the foster parents, their physical, mental and emotional needs and level of development and the effect of any delay in placing them for adoption.
[90] The decision is also important to the approved adoptive parents and to those persons wishing to adopt who were not chosen.
[91] When one balances the importance of the MCS’s decision to the children and others, its importance to the foster parents does not suggest that the MCS was obliged to disclose information to the foster parents or meet with them to give them the opportunity for meaningful participation in the selection process.
[92] The judge also focussed on the subjective expectations of the foster parents, the fourth consideration in Baker, supra, in deciding they were entitled to disclosure and a meeting. It is only the legitimate expectations of the affected persons that Baker, supra, indicates are to be considered.
[93] To the extent the judge found that the foster parents had legitimate expectations to meet with the MCS and to receive disclosure prior to the review process, with respect, I am satisfied she was wrong. There could have been no expectation in June that the foster parents would be selected as adoptive parents for the children so there could have been no legitimate expectation that they would receive disclosure or be asked to attend a meeting to provide meaningful input into the selection process. At that time they had indicated they were not interested in adopting the children and had not taken the required steps that they knew they had to take to be considered as an adoptive home. Nor could they have had a legitimate expectation in September when they still had not taken the required steps to become an approved adoptive home.
[94] It is reasonable that their legitimate expectations may have changed by the time of the fall review. They had begun the required steps to become an approved adoptive home but had not completed them and, more importantly, they had received a copy of the MCS’s pamphlet outlining the review procedure which included a meeting with the Casework Supervisor. Their legitimate expectation of a meeting with the Casework Supervisor however cannot trump the best interests of the children. The children’s interests required the MCS to follow a review process that would result in their being placed in the adoptive home best suited to their physical, mental and emotional needs as quickly as possible. Those interests would not have been met by the MCS meeting with the foster parents and halting her plans to place the children for adoption with the already approved adoptive parents who met all of the identified criteria for the best adoptive home for the children in order to give the foster parents time to become an approved adoptive home. This decision could not be made for several months because the foster parents did not begin the adoption classes until the following January.
[95] The last criterion referred to in Baker, supra, for consideration in determining the nature of the duty of fairness owed in these particular circumstances is the process chosen by the decision maker to make these types of decisions and to review them if necessary. While not determinative, the process chosen should be carefully considered where the statute leaves this choice to the decision maker as it does here and when the decision maker has expertise in making this type of decision as is also the case here.
[96] There was no suggestion that the MCS did not follow her usual process in selecting the best adoptive home for the children in both June and September. There was no suggestion that the MCS acted in bad faith in choosing the adoptive home she did. She testified that she took into account the effect on the children of being separated from the foster parents. There was no evidence suggesting that the parents chosen to adopt the children did not meet the criteria identified as being those that would best meet their specific needs.
[97] There is evidence the MCS did not follow her usual process in reviewing her selection in the Fall. There was no meeting held with the Casework Supervisor. Instead the foster parents had two meetings with the social worker in which the reasons for the MCS’s decision were explained to them. They had the opportunity to address these reasons in their letters to the MCS. Their several letters were reviewed and responded to by the MCS in a timely fashion during the review process. The absence of this meeting again does not trump the best interests of the children for the reasons set out in ¶ 94 above.
[98] For the foregoing reasons, I am satisfied on the facts of this appeal that the MCS did not breach the duty of fairness she owed to the foster parents in selecting the prospective adoptive home for the children or in reviewing her selection. The duty she owed to the foster parents must be determined by reference to the best interests of the children. The selection of the best adoptive parents for the children is a personal and sensitive decision of importance to many people. The scheme of the CFSA gives broad discretion to the MCS, that of a parent, few rights to foster parents and focusses on the importance of time in removing children from harm’s way and placing them in a permanent stable adoptive home if their biological parents are found to be unable to continue to care for them. No bad faith has been suggested and there is no indication that the MCS did not take into account the best interests of the children at all stages of the process of selecting the adoptive parents.
[99] The MCS started planning for the adoption of the children when she decided to apply for permanent care. This early preparation is to be commended given the emphasis in the CFSA on avoiding delay throughout child protection matters. Taking into account the effect on the children of being separated from the foster parents, she asked the foster parents if they were interested in adopting the children at a time when they could have taken the necessary steps to become an approved adoptive home. She considered what criteria relating to adoptive parents would best suit the physical, mental and emotional needs of the children. An adoptive home was chosen and the prospective adoptive parents were informed so that the transition could be made quickly if a permanent care order was issued. Once the foster parents indicated they were interested in adopting, with the attachment issue in mind along with the criteria identified for the best adoptive parents, the MCS reconsidered her selection. When the foster parents indicated their disagreement with her selection and their lack of participation in it, she for the most part followed her usual procedure for reviewing such decisions. As part of this review the foster parents had two meetings with the social worker and had the opportunity to put their position before the MCS in writing. Given the best interests of the children to be placed for adoption quickly with adoptive parents best meeting their specific needs, I am satisfied the MCS did not breach the duty of fairness she owed to the foster parents in proceeding as she did.
[100] Accordingly, I would allow the appeal. I would not order costs as none were sought by the MCS.
Hamilton, J.A.
Concurred in:
Cromwell, J.A.
Fichaud, J.A.