Family

Little-known board helps with children's aid society disputes

By Peter Small, AdvocateDaily.com Contributor

Ontarians locked in a dispute with a children’s aid society over fostering or adoption issues can expect a quick and fair hearing from a remarkable, but little-known tribunal, the Child and Family Services Review Board, says Toronto family lawyer Gene C. Colman, whose firm recently secured a favourable decision for a foster family seeking to adopt three children.

“If they have jurisdiction in your particular case, I'd say go to the board without a second thought. You've got nothing to lose, and chances are you're going to get a very speedy, fair hearing,” Colman, principal of Gene C. Colman Family Law Centre, tells AdvocateDaily.com.

The Child and Family Services Review Board has considerable, but narrowly defined powers over fostering and adoption as set out by the Child, Youth and Family Services Act, he says. Notably:

  • If a person receiving services from a children’s aid society makes a complaint and believes they have not been dealt with fairly, they can appeal to the board. The board can order the society to respond to the complaint and give reasons for its decision.
  • If foster parents wish to challenge a children’s aid society’s decision to remove a child who has lived with them for at least two continuous years, the board can overturn that decision unless the society believes the child is in immediate danger.
  • If the society denies a foster parent’s or another person’s application to adopt a child, the board can review that decision and order the society to proceed with the adoption application before the court, although it cannot order the adoption itself.

The Act appears to give the board considerable powers, except in areas within a court’s jurisdiction, Colman says.

Moreover, the board’s decisions are binding and cannot be appealed, he notes. They are subject to judicial review, but that implies only on jurisdictional issues.

The Act stipulates that a children’s aid society must give foster parents advance notice when it proposes to remove a foster child from their home, Colman says.

From that moment, the foster parents have 10 days to appeal the society’s decision to the board. “And once you file that application with the board, it's like injunctive relief because it stops the society dead in its tracks,” he says.

The foster parents can then argue their appeal at a hearing before the board.

The board recently ruled in favour of two foster parents represented by Colman and his associate, Jenny Kirshen.

The couple opposed an order from a children’s aid society to remove three foster children from their home. In addition, the parents wanted the society to reverse its decision to deny their application to adopt the three children, two of whom had known no other home, he says.

After a week-long hearing, the board ruled that the society should not remove the children from the home. “The board decided, correctly in my view, on the evidence, that the children's present and future security lay with our clients,” Colman says.

The board also disagreed with the society’s denial of the foster parents’ adoption application. It did not, however, have the jurisdiction to order the society to reverse its decision.

The board conceded that the society was at liberty to take the position in court that the adoption should not proceed. “But what the society was not at liberty to do was to refuse to process the adoption application,” he says.

In handling this case, the board maintained impressively high standards, Colman says.

It acted with lightning speed to open the file, deal with preliminary issues and schedule a hearing, he says. “I’ve never seen anything like that.”

The three board members holding the hearing were attentive, thoughtful and knowledgeable, Colman says. “They conducted a hearing that I felt was procedurally fair to everyone. Both sides were given a full opportunity to present their evidence and to cross-examine witnesses.”

Chaired by a lawyer, the hearing panel asked excellent, probing questions in a sensitive, respectful manner, he says. “They really wanted to get to the bottom of it.”

The panel was prompt in rendering its decision, which was quickly followed by written reasons, he says, adding that people should not hesitate to seek the board’s assistance if they have an issue within its jurisdiction.

“For lay people, particularly foster parents who are in a similar situation, they should keep in mind that the board is there as a totally neutral and fair arbiter of the dispute that you have with children's aid. And you're going to get a speedy, fair hearing,” Colman says.

To Read More Gene C. Colman Posts Click Here