Date:
20130117
Docket:
A-136-12
Citation: 2013 FCA 12
CORAM: NADON
J.A.
SHARLOW
J.A.
DAWSON J.A.
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
KIMBERLEY
HUNTER
Respondent
REASONS
FOR JUDGMENT
SHARLOW
J.A.
[1]
The
Crown has applied for judicial review of a decision of Umpire Seniuk (CUB
78779). He upheld the decision of the Board of Referees that the respondent
Kimberley Hunter qualified for parental benefits under subsection 23(1) of the Employment
Insurance Act, S.C. 1996, c. 23, with respect to her grandchild. For the
reasons that follow, I would dismiss the Crown’s application.
[2]
Subsection
23(1) reads as follows:
|
23. (1) Notwithstanding
section 18, but subject to this section, benefits are payable to a major
attachment claimant to care for one or more new-born children of the claimant
or one or more children placed with the claimant for the purpose of adoption
under the laws governing adoption in the province in which the claimant
resides.
|
23. (1) Malgré l’article
18 mais sous réserve des autres dispositions du présent article, des
prestations sont payables à un prestataire de la première catégorie qui veut
prendre soin de son ou de ses nouveau-nés ou d’un ou plusieurs enfants placés
chez lui en vue de leur adoption en conformité avec les lois régissant l’adoption
dans la province où il réside.
|
[3]
The
facts are not in dispute. The Umpire summarized the facts and the Board’s
conclusions as follows:
|
In arriving at its decision, the Board relied on
the docket for the information that the mother (the daughter of the claimant)
had given temporary care of [her] child to the claimant (exhibit 9.1). The
Board also relied on that for evidence that the claimant’s husband had been
hospitalized and the father of the child was not involved with the child. The
evidence at the hearing established further facts that the Board relied upon
(exhibit 9.2). These facts include the following. The mother suffered from a
permanent mental illness and the claimant is the sole provider for the child,
her grandson. The child protection agency eventually apprehended the child,
awarded the claimant care of the child and is working with the claimant for
her to adopt her grandson. Relying on CUB 38323 and because the claimant had
legal custody of the child and was filing for legal adoption (supported by
the child protection agency), the Board allowed the appeal and found the
claimant was entitled to parental benefits (exhibit 9.3).
|
[4]
The
Umpire was required to determine whether it was open to the Board of Referees
to conclude on the evidence presented that Ms. Hunter’s grandchild had been
placed with her “for the purpose of adoption”. After a careful and detailed
review of the relevant jurisprudence and the evidence, he concluded that it was
open to the Board to find that the statutory purpose test was met
in this case. The question before this
Court is whether the Umpire correctly interpreted subsection 23(1) and properly
applied the standard of reasonableness to the Board’s findings of fact and its
application of the facts to the law: Budhai v. Canada (Attorney General) (C.A.), 2002 FCA 298, [2003] 2 F.C. 57 at paragraphs 47 and 48.
[5]
Ms.
Hunter’s entitlement to benefits under subsection 23(1) depends upon the
purpose for which her grandchild was placed with her. I agree with the Umpire
that this is essentially a factual question. On the record before the Board, it
could be answered only on the basis of Ms. Hunter’s own evidence, which
included a letter from a social worker employed by the provincial child
protection agency. That letter is supportive of Ms. Hunter’s factual assertions without
quoting or purporting to describe the provisions of the provincial adoption law
or process.
[6]
In
this Court, the Crown argued that Ms. Hunter’s claim could not succeed because
at the relevant time she had only “temporary legal custody” of her grandchild,
and that the statutory purpose test is not met unless there is a court order
(or something analogous to a court order) granting the claimant “permanent
custody”. To accept that argument would impose a judge-made precondition to
eligibility for benefits under subsection 23(1) that is not stated or
necessarily implied by its language. Parliament has chosen broad and general
terms to describe the statutory purpose test in subsection 23(1). In my view,
Parliament must be taken to have recognized that the placement of a
child for the purpose of adoption may arise in a variety of circumstances.
[7]
I
appreciate that in some cases, a provincial law or documentation relating to
the custody of a particular child (assuming such documentation is available in
the face of confidentiality issues) may provide a conclusive answer to the
factual question asked by subsection 23(1) as to the purpose of the child’s
placement. In this case, however, the Crown has provided no such documentation
and only sparse references to the applicable provincial law. I have been able
to find no provincial law that necessarily contradicts the Board’s conclusion.
[8]
In
my view, the record discloses no basis upon which this Court can set aside the
Umpire’s conclusion that the Board’s decision was reasonable. Therefore, I
would dismiss the application for judicial review.
[9]
Ms.
Hunter has asked for her costs of this application on a solicitor and client
basis, or alternatively on the basis of a lump sum which is less than solicitor
and client costs but higher than costs on the highest tariff rate. It is argued
that, in bringing this application for judicial review, the Crown is attempting
to settle the interpretation of subsection 23(1) at the expense of a single
claimant. At the hearing, the Court was provided with draft bills of costs on a
solicitor and client basis, as well as on the basis of Column III and Column V
of the tariff.
[10]
There
is no basis in the record of this case to conclude that the Crown’s application
for judicial review was motivated by anything other than an honest disagreement
with the Umpire’s decision. In the circumstances, and having reviewed the draft
bills of costs prepared for Ms. Hunter on the basis of Column III, I would award
the costs of this application to her in the sum of $3,500 inclusive of all
disbursements and tax.
“K. Sharlow”
“I agree
Eleanor R. Dawson J.A.”
NADON J.A. DISSENTING
[11]
I
cannot agree with my colleagues that we should dismiss the Attorney General of
Canada’s (“the applicant’) application for judicial review. In my view, as
there was no evidence whatsoever to support the Board of Referees’ (“the
Board”) finding that the respondent’s grandchild had been placed with her for
the purpose of adoption, the umpire erred in failing to intervene. The umpire
also erred in disregarding Parliament’s clear intention in enacting subsection
23(1) of the Employment Insurance Act, S.C. 1996, c. 23 (the “Act”). I
would therefore allow the application for judicial review.
The Facts
[12]
A
brief summary of the facts will be helpful in understanding why I cannot agree
with my colleagues.
[13]
In
August 2011, the respondent established a claim for employment insurance
benefits effective August 28, 2011, in which she indicated that she had been
working for the Assiniboine Regional Health Authority. Her last day of work
with her employer was July 13, 2011, and she was on paid sick leave until
August 25, 2011.
[14]
In
her application, the respondent further indicated that she was applying for
parental benefits so as to allow her to care for a child. Upon inquiry by the
Canada Employment Insurance Commission (“the Commission”) on August 25, 2011,
the respondent indicated that the child was her grandchild whose father was in
jail and whose mother, her daughter, was hospitalized.
[15]
On
the basis of the information available to it, the Commission determined that
the respondent was not entitled to benefits. Accordingly, the Commission wrote
to the respondent on September 13, 2011, advising her that:
We are writing to inform you that
we cannot pay you parental employment insurance benefits as of July 18, 2011.
This is because you have not proven that a child has
been placed with you for adoption.
[16]
The
Commission’s decision was appealed by the respondent to the Board. On October
12, 2011, the Board allowed her appeal. After reviewing the information from
the docket and the evidence given at the hearing by the respondent, the Board
determined that the respondent qualified for parental benefits. In its view,
“[t]he claimant [the respondent] is in the process, with CFS, of filing for
legal adoption. At this time, the claimant has been awarded legal custody”
(Board decision, page 3).
[17]
This
decision led to the Commission’s appeal to the umpire who, on March 15, 2012,
dismissed the appeal. Hence, the applicant’s judicial review application which
is now before us.
[18]
The
applicant says that the umpire erred both in fact and in law in dismissing its
appeal. I agree for the following reasons.
The Umpire’s Decision
[19]
First,
the umpire set out the basis upon which the Commission was appealing to him, i.e.
that the appeal was “based on a distinction between a temporary and a permanent
custody order, as well as the necessity of demonstrating the purpose of the
custody at the time of the application for parental benefits” (Umpire’s
decision, page 2).
[20]
Then,
after reproducing subsection 23(1) of the Act, the umpire turned to the Umpire
jurisprudence (CUBs) on the issue, which he reviewed at pages 3 to 8 of his
decision. At page 8 of his decision, the umpire found that decisions such as
CUB 38323 stood for the proposition that what was required to meet the
requirements of section 23 of the Act was “tangible evidence to conclude that
the child had been placed with the claimant for the purpose of adoption” and
that documentary evidence, although sufficient, was not a requirement.
[21]
With
the above principle in mind, the umpire then turned to the Board’s decision.
First, he noted that the Board also took the view that documentary evidence,
although sufficient, was not a necessary condition to meet the “tangible
evidence” test. In that regard, he referred to page 3 of the Board’s decision
which I have reproduced above.
[22]
The
umpire then noted that the Board had been guided by the interpretation found in
CUB 38323 that “legal custody (that is considered permanent, given the
underlying facts in the docket) coupled with an intent to adopt is sufficient
to establish an entitlement to benefits under this section of the Act”.
[23]
The
umpire went on to indicate that although the Board did not set out the relevant
facts in detail, it had adopted those which appeared in the docket. In his
view, the essential facts were not in dispute. He summarized them as follows at
page 10 of his decision:
… The claimant’s daughter suffers from schizophrenia
and psychosis. She struggles with drug addition. Psychiatric and child
apprehension agents were concerned the mother could not cope with the stress of
child care, and she is currently not allowed to be alone with the child. The
natural father and the mother intend to relinquish parental rights, but the
mother’s psychological condition must first be stabilized. In such a dynamic,
unfolding situation it is unreasonable to expect that as of the date of child
birth, the niceties of adoption proceedings can be in place, and they were not.
It is not feasible for child protection agencies to move immediately to
permanent apprehension status in such circumstances as these. But all
projections for the future indicate that the infant will be adopted by the
claimant. While that is the realistic projection, the reality is that the
intent is to adopt and that the custody is essentially permanent.
[24]
That
excerpt is complemented by another portion of the umpire’s decision; at page 2,
he wrote:
In arriving at its decision, the Board relied on the
docket for the information that the mother (the daughter of the claimant) had
given temporary care of the child to the claimant (exhibit 9.1). The Board also
relied on that for evidence that the claimant’s husband had been hospitalized
and the father of the child was not involved with the child. The evidence at
the hearing established further facts that the Board relied upon (exhibit 9.2).
These facts include the following. The mother suffered from a permanent mental
illness and the claimant is the sole provider for the child, her grandson. The
child protection agency eventually apprehended the child, awarded the claimant
care of the child and is working with the claimant for her to adopt her
grandson. Relying on CUB 38323 and because the claimant had legal custody of
the child and was filing for legal adoption (supported by the child protection
agency), the Board allowed the appeal and found the claimant was entitled to
parental benefits (exhibit 9.3).
[25]
Thus,
the gist of the Board’s findings, which the umpire accepted, is that both the
father and mother of the child do not wish to keep their parental rights, that
the mother suffers from mental illness, that the respondent is the sole
provider for her grandson, that the child protection agency apprehended the
child and awarded custody to the respondent, and that the agency “is working
with the claimant for her to adopt her grandson”.
[26]
These
facts led the umpire to opine that “[a]ll projections for the future indicate
that the infant will be adopted by the claimant” and that “[w]hile that is the
realistic projection, the reality is that the intent is to adopt and the
custody is essentially permanent”. In the umpire’s view, the evidence clearly
entitled the Board to conclude as it did.
Analysis
[27]
In
my view, the umpire’s decision cannot stand. In concluding as he did, the
umpire, like the Board, disregarded the evidence before him and disregarded
also the clear requirements of subsection 23(1) of the Act. The subsection
reads as follows:
|
23. (1) Notwithstanding section
18, but subject to this section, benefits are payable to a major attachment
claimant to care for one or more new-born children of the claimant or one
or more children placed with the claimant for the purpose of adoption under
the laws governing adoption in the province in which the claimant resides.
[Emphasis added]
|
23. (1) Malgré l’article 18 mais
sous réserve des autres dispositions du présent article, des prestations sont
payables à un prestataire de la première catégorie qui veut prendre soin de
son ou de ses nouveau-nés ou d’un ou plusieurs enfants placés chez lui en
vue de leur adoption en conformité avec les lois régissant l’adoption dans la
province où il réside.
[Je souligne]
|
[28]
Subsection
23(1) provides, in clear terms, that benefits will be payable to a claimant who
is caring for one or more children placed with him or her “for the purpose of
adoption under the laws governing adoption in the province in which the
claimant resides”. Thus, a claimant must show that, at the time of the
placement, the purpose was adoption. Adoption, in the context of subsection
23(1), must necessarily mean legal adoption, since the provision states that
the purpose of the placement is “adoption under the laws governing adoption in
the province in which the claimant resides”. Although the subsection does not
require that a child be legally adopted at the time of the placement, there
must be some evidence that those in charge of the placement, either the child
and family services agency or the court, are placing the child with the
claimant with the intent that the claimant will adopt the child. Whether or not
the adoption ultimately occurs is, in my view, irrelevant at that stage.
[29]
Consequently,
not all placements of a child with a claimant will qualify for parental
benefits. Adoption of a child by a claimant, in a legal sense, must be the true
purpose of the placement. Other motives or purposes, although laudable, will not
suffice. Thus, there must be sufficient evidence to demonstrate that the
placement will lead or is intended to lead to adoption by a claimant.
[30]
In
making this statement, I do not intend to formulate a rigid test. On the
contrary, the approach to the provision should be a flexible one and findings
should necessarily be made on the basis of the facts in the record. However, an
assessment of whether a placement has been made for the purpose of adoption
necessarily remains an objective one. The fact that the claimant, as herein,
says that she intends to adopt a child is only one piece of the puzzle.
Obviously, if the claimant does not intend to adopt the child placed with her,
then that is the end of the story. In any event, I need not dwell any further
on this question as there is clearly insufficient evidence to support the view
that the child was placed with the respondent for the purpose of adoption. I
will therefore take a closer look at the evidence so as to demonstrate that the
Board’s finding was not open to it.
[31]
First,
we have evidence with respect to the father and mother’s intentions regarding their
child. The father, in a note dated February 3, 2012, indicated that he was
“[f]orfeiting all parental rights”. As for the mother, there is a letter dated September
15, 2011, in which she gives her consent to her child being entrusted for care
to her mother “until I am able to look after him on my own”. Complementing this
is a letter also dated September 15, 2011, in which the respondent indicates
that her grandson was born on June 6, 2011, that he and his mother have lived
with her from the time they left the hospital, that her daughter, who suffers from
mental health problems, has been hospitalized for two months, and that because
the child had been with her since July 11, 2011, she had to leave work to take
care of him. The respondent also indicated that the child’s father was not in
the picture as he was in prison and that he had not been involved with his
child, adding that “[t]he mother is not able to take care of the child at
this time and requires treatment” [emphasis added].
[32]
Also
of relevance is a letter dated September 13, 2011, from the Brandon Regional
Health Authority (“the Health Authority”), in which a doctor states that the
mother’s child “is unable to look after her child at present for medical
reasons” [emphasis added].
[33]
Of
further relevance is a letter dated August 18, 2011, from Nancy Kolesar, a community
mental health worker at the Center for Adult Psychiatry, Brandon Regional
Health Authority, in which Ms. Kolesar indicates that the respondent had been
awarded care of her grandson pursuant to an apprehension order made by Child
and Family Services of Western Manitoba (“CFS”).
[34]
There
is also a letter from CFS, dated February 28, 2012, and written by Danuta
Kosteckyj, rural family services worker, in which Mr. Kosteckyj states that the
Agency placed the child with the respondent on August 5, 2011, and that the
child remains, to date, in the respondent’s care. After stating that the
respondent “demonstrates a solid long-term commitment to provide care”, and
that her “commitment to the child and his care is absolute and permanent”, Ms.
Kosteckyj makes the following point: “[S]hould permanent care plans for the
child be considered by the Agency, her application will be supported”. In
referring to the possibility of considering permanent care in the future, Ms.
Kosteckyj makes it clear that CFS, at the time of writing the letter, had
neither considered permanent care nor, as necessarily follows, adoption.
[35]
That
information, along with the testimony given by the respondent before the Board
on October 12, 2011, is all the evidence that was before it when it rendered
its decision. I now turn to the respondent’s testimony.
[36]
The
respondent testified that her grandson had been placed with her on July 11,
2011, when her daughter, the mother of the child, had to be hospitalized for
treatment. Her daughter remained in hospital for several months and afterwards,
had received visitation rights of two hours a week under supervision. She
further testified that her daughter “doesn’t believe there is anything wrong
with her” (Transcript, page 11). She also indicated that, in her view, her
daughter was unable to look after herself, “never mind looking after an infant”
(Transcript, page 10). At page 11 of the transcript, the chair of the panel,
Ms. Conibear, made the assertion that “[s]o the option for adopting him legally
is not there because Kim [the mother] does not accept that she’s not able to
look after him” The respondent answered as follows: “It’s not going to be up to
her, whether she – he is going to be adopted by us or not. It’s going to come
down to CFS.”
[37]
Further
on, at page 12 of the transcript, the respondent indicated that “although the
paperwork hasn’t been done for adoption, that does not necessarily mean that it
is not going to occur”. At page 16 of the transcript, the respondent went on to
say that her daughter “exhibited schizophrenic behaviour”.
[38]
That
is the totality of the evidence that was before the Board. Is it possible, on
that evidence, to conclude that the child was placed with the respondent for
the purpose of adoption? In my view, it is not possible.
[39]
What
the evidence reveals is that the child is in the care of the respondent on a
temporary basis and not on a permanent one. Although the father does not appear
to be interested in the welfare of his son, the mother has agreed to the child
being placed with the respondent on a temporary basis. The mother’s letter of
September 15, 2012, makes it clear that she has not abandoned her rights with
regard to the care of her child. In support of the view that the placement
cannot be considered as a permanent one is the fact that the doctor from the
Brandon Regional Health Authority, in his letter dated of September 13, 2011,
stated that the mother “could not take care of her child at present for medical
reasons”. In other words, there is no medical assessment of the mother’s
long-term ability to provide care for her child.
[40]
It
is in that context, i.e. that the mother was not able to take care of
her child, that CFS took out an apprehension order so as to entrust the care of
the child to the respondent. In other words, it was determined that the safety
of the child required that he be placed with someone other than his mother. It
is also revealing that in her letter of February 28, 2012, Ms. Kosteckyj of CFS
makes it clear that the Agency had not yet given any thought to a permanent
care plan for the child.
[41]
In
his summary of the facts at pages 10 of his decision, the umpire states that
both the mother and father “intend to relinquish parental rights, but the
mother’s psychological condition must first be stabilized”. In my respectful
view, there is no evidence that the mother intends to relinquish her parental
rights. On the contrary, she has only given custody to her mother on a
temporary basis. Whether or not her medical condition improves, time will tell.
However, on the record before us, it is impossible to make a judgment as to
what will happen in the future. It must be remembered that the only medical
evidence on file is the letter from the Health Authority which states that the
mother cannot, at the present time, take care of her child. The letter is
silent as to what may happen in the future and it is not for us, nor for the
Board or the umpire, to speculate.
[42]
I
would also add that it is certainly not possible to say, as the umpire stated
at page 10 of his decision, that the child will necessarily be adopted by the
respondent. It is also not possible, in my respectful view, to say, as the
umpire did, that the custody of the child was permanent.
[43]
I
have carefully read the respondent’s testimony but, unfortunately, it does not
add much to the evidence other than repeat what is already there. It is clear that
the respondent is not optimistic about her daughter’s future and that she is
sincere and well-intentioned when she says that she intends to adopt her
grandson. However, the plain fact is that at the time the child was placed with
her, adoption under the laws of Manitoba was not the purpose of the placement.
Placement of the child for the purpose of adoption may well occur in the
future, but that has not yet taken place as it will obviously depend on the
mother’s medical condition and assessments.
[44]
It
is obvious that both the Board and the umpire had great sympathy for the
respondent. And so do I. She is, like her grandson, a victim of tragic and sad
circumstances which have forced her to leave her employment in order to take
care of him. Unfortunately, it is not in our power, nor in that of the Board or
the umpire, to disregard the clear legislative intent found in section 23 of
the Act which requires that the placement be made for the purpose of adoption.
In the matter before us, it is clear, in my respectful view, that the placement
of the child was not, when it was made, for the purpose of adoption.
[45]
In
order for the Board and the umpire to conclude as they did, they had to, in
effect, make determinations which were not theirs to make. Before CFS can consider
adoption in this matter, certain issues must necessarily be resolved, i.e.:
will the mother give her consent in the future to have her child adopted by the
respondent?; will the mother be unable in the future, say within the next two
years, to resume custody of her child?; and will CFS take legal steps, if the
mother refuses to give her consent, to destitute her of her parental authority
so as to place the child with the respondent for the purpose of adoption? These
questions, it seems to me, must be addressed by the authorities before they are
to give any consideration to the possibility of placing the child with the
applicant for adoption. On the record before us, these questions have not been
resolved, but the Board and the umpire, by their respective decisions, have,
for all intents and purposes, decided these questions against the mother and in
favour of the respondent.
[46]
This
case is not one where the issue is whether we should interfere with the Board’s
factual findings. To the contrary, there is no evidence whatsoever to support
the view that the child was placed with the applicant for the purpose of
adoption, and this whether one takes a rigid or flexible approach to the words
found in subsection 23(1) of the Act. In that respect, the decisions of the
Board and the umpire bring to mind the words of Daniel Patrick Moynihan, who
once famously said that “[E]veryone is entitled to his own opinion, but not his
own facts”.
[47]
Consequently,
the Board’s decision is unreasonable both in fact and in law, and thus the
umpire ought to have intervened.
[48]
Before
concluding, I wish to make it clear that in determining the issue before us, I
did not consider the affidavit of the respondent, dated June 28, 2012, in which
she sets out facts which were not before the Board, nor before the umpire. More
particularly, the respondent speaks to facts which occurred after the umpire
rendered his decision. I agree entirely with the applicant’s position that
since these facts were not before the Board or the umpire, we are not at
liberty to consider them in determining the application for judicial review
(see: Swain v. Canada (Attorney General), 2003 FCA 434).
Disposition
[49]
I
would therefore allow the application for judicial review, set aside the
decision of the umpire, and refer the matter back to the umpire for
redetermination on the basis that there is no evidence to support a finding
that the placement of the child with the respondent was made for the purpose of
adoption. In the circumstances, I would not make any order as to costs.
“M.
Nadon”
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