A Victory in Child Protection Law
By Jessica Chyc, student, and James Peluch – 2016/10/04
In an almost fairytale-like ending to a four year battle with the Toronto Children’s Aid Society (C.A.S.), Jim Peluch of the SorbaraLaw Family Law department (Guelph office) received news on Christmas Eve 2015 that two young children would be reunited with their older half-sibling. The Child and Family Services Review Board overturned an earlier 2011 C.A.S. decision and ordered that two young children with special needs be returned to the care of Jim’s clients, so that they could reside with their older half-sibling and hopefully eventually be adopted by the couple.
This was a good outcome for our Family Law department on a very complicated and narrowly defined legislative issue.
The Child and Family Services Review Board (C.F.S.R.B.) is an administrative tribunal whose powers are prescribed by the Ontario Child and Family Services Act. The issue of children being “at risk” or in need of “protection” in cases of physical abuse, sexual abuse, neglect, or emotional harm, is always determined by a Provincial Court. However, the placement of children once they have been made Crown Wards is an issue in which C.F.S.R.B. can intervene in limited circumstances.
In this case, an older half-sibling of the young children was put in the care of the couple by C.A.S. in 2005. The birth mother went on to have four more children with various male partners over the years. The second and third children were placed in foster care. The fourth and fifth children were born in 2009 and 2010 respectively. Jim’s clients went through a number of screening procedures and after the youngest two children were made Crown Wards in 2011, they were placed with the (potential adoptive) couple in 2011, together with the older half-sibling. After six months the C.A.S. felt that the couple was not a good fit for the two younger children, even though there were no reported problems with the oldest child between 2005 and 2011, and there were favourable reports for four of the first six months that the younger children were placed there. Communication issues arose when the couple relocated to a larger rural property in a neighbouring municipality. The C.A.S. also felt that one of the parents was not sharing information about the children in a straightforward manner; however, the C.A.S. had failed to fully investigate the circumstances surrounding the lack of information sharing.
Jim and his clients attended a hearing which was heard over 6 days between May through November, 2015. The Board heard evidence of the children’s needs and the efforts of the C.A.S. and of the clients to meet those needs. Jim was able to negate the evidence of the C.A.S.’s child-specific adoption homestudy expert, who had prepared a lengthy written report explaining why the couple was not a proper placement for the two youngest children. Her 2015 report essentially confirmed the 2011 C.A.S. decision to remove the children after six months. The C.F.S.R.B. did not agree with the rationale of the C.A.S. or their expert following Jim’s skillful cross examination. They released a 28-page decision outlining their reasons for having the children returned to Jim’s clients on December 24, 2015, and both children were home with the couple by December 30, 2015. At present, all indications are that the three children are getting along reasonably well. The C.F.S.R.B.’s intention of maintaining the sibling relationship where possible was certainly prescient in this particular case.
Congratulations to Jim and to his assistant, Karen Barber, without whom he could not have succeeded.
* * This article is intended only to inform and educate. It is not legal advice. Be sure to contact a lawyer to obtain legal advice on any specific matter.
James Peluch is a lawyer at SorbaraLaw, practising predominantly family law in the firm’s Guelph office.