2013 Julius Alexander Isaac Diversity Moot

Omar Ha-Redeye was a judge in the 2013 Julius Alexander Isaac Diversity Moot.

The competition was held at the Lord Elgin Hotel in Ottawa, Ontario on Feb. 22-23, 2013 at the BLSAC Conference, and is hosted by Koskie Minsky LLP.

The problem for the moot was as follows:

BACKGROUND
This is an application for leave to appeal to the Nova Scotia Court of Appeal.
A.B. has been approved as a foster mother for over ten years. She has fostered over
20 children. One of those children is a boy, W., whom she adopted in 2008.
In the spring of 2010, she states that she advised representatives of the Department
of Community Services that she would no longer foster newborn infants in her home
on a short-term basis. The reason she provided for her decision was the impact on her
son, W., forming bonds with foster children and then having to deal with his loss and
grief when those children left her care. She remained willing to foster infants if there
was a realistic likelihood that the foster placement could become permanent by
adoption. The Department contests that this was ever communicated to them.
J., a female child, was born June 1, 2010. Her mother had a serious drug addiction
which persisted after her pregnancy and rendered her unable to parent. She had
given J. up for adoption. J.’s father was unknown. J. was placed with A.B. in July of
2010.
An Order was made accepting E.F. as a suitable adoptive parent on January 13, 2011.
The day after the order for permanent care was made, two adoption workers met with
A.B. to inform her of the Department’s decision. A.B. asked at that time, whether she
had also been considered as a potential adoptive parent. They told her she had not
been considered because she was on record as a foster parent and no formal request
for adoption had been made by her. They also informed her that the mandated,
preferred options identified by the legislation are placement with a family of the child’s
own culture, race or language, and with a relative or siblings where possible.
A.B. is African-Canadian, as is W, her adopted son. J. is racially mixed. The heritage of
her father is unknown. Her mother is of mixed heritage, Mi’kmaq and AfricanCanadian. A.B. felt strongly that she was ably equipped to be the adoptive parent for
J. Since birth, J. had been part of her family, loving A.B. as his mother and W. and J.
loving each other as brother and sister. They had become a family in every sense of
the word. E.F., the adoptive single parent approved in January 2011, is Mi’kmaq and
African-Canadian. She is employed as a program director at the local friendship
centre.
A.B. wrote to the Department on January 17, 2011, shortly after learning of the
decision to place J. with E.F. As a result of her express interest in adopting J. the
Minister of Community Services, acting through her lawful delegate, held a second
adoption placement conference on February 10, 2011 to reassess the adoption
placement for J. A decision was made to permit A.B. to attend that conference and
present her plan for adoption. She did so. Part of her presentation was a request that
the Department order an attachment study. This was never ordered.
On February 17, 2011, a decision was again made to place J. with E.F. as the adoptive
parent. The assessment report concluded that it would be in the best interests of J. to
be placed for adoption with E.F. based on E.F.’s greater ability to sustain J’s cultural
development. The assessment report stated that due consideration was given to A.B.’s
submissions. The Minister of Community Services’ social workers considered the
potential for short-term trauma and grief, but after weighing all factors, their decision,
as the Minister’s delegate, was to effect immediate transition in J.’s best interests as a whole. Under the policies of the Minister, the decision of the adoption placement
conference, effective February 17, 2012, became the decision of the Minister.
Steps were taken to commence the transition of J. from A.B.’s foster care into E.F.’s
home for adoption. The Agency proposed a six to eight-week transition period lasting
from February 21 to April 18, 2011. Agency workers from the department were
surprised by A.B. advising them that she wanted J. to be fully transitioned by the first
week in March. The reason was A.B.’s concern over how W. would deal with the loss
of J. from his family. A.B. requested a transition meeting to take place as soon as
possible. There was no transition meeting held with A.B.
On April 12, 2011, A.B. swore an affidavit in support of two motions in the Nova
Scotia Supreme Court. The first motion sought an order enjoining the Minister from
removing J. from her care and other relief. The applicant sought judicial review on the
ground that the Minister did not comply with the requirements of procedural fairness
by not following her own plan of action requiring the performance of an attachment
study. She further stated that the Minister was not impartial in predetermining J.’s
placement with E.F., in January 2011, absent due consideration of A.B.’s stated desire
to serve as an adoptive parent. She stated it was implicit in her agreement to foster J
that the Minister was aware she expected to be considered as a potential adoptive
parent. She also outlined her treatment at the hands of the Department. She noted
that on March 4, 2011, four social workers from the Agency came to A.B.’s home
unannounced and took J. A.B. was shocked by this conduct. She had no opportunity
to prepare herself, J. or W. for this development. A.B. describes this conduct as being
“extremely unusual”. Each time a foster child was transitioned into an adoptive home,
she was involved in that process. In addition, A.B. attaches to her affidavit copies of
the Agency’s policies which she says requires the adoption workers to carry out a
number of steps, which they did not do.
All of the motions were heard on May 16, 2011. The Honourable Justice John Smith
gave an oral decision later that day granting an interim injunction requiring J.’s
immediate return to A.B.’s care and prohibiting removal from her home pending
further order of the Court. Justice Smith also ordered that a review of the assessment
giving rise to J.’s placement with E.F. be performed by June 16, 2011. He further
ordered that the findings of the review regarding the placement of J. be given
immediate force and effect upon its being provided formally to the Minister.
A review panel was convened by the Minister on May 23, 2011. They reported to the
Minister by June 16, 2011. The panel of three social workers wrote that the adoption
placement conference that made the decision effective February 17, 2011 to place J.
in E.F.’s home was the correct decision at that time. However, they went on to
conclude that due to the amount of time that had since passed J’s foster placement
with A.B. in January of 2011, it was no longer practicable to place J. in E.F.’s home
and that the most suitable home now was that of A.B.
The Minister has appealed the decision by Justice Smith and is arguing that the
decision to place J. with E.F. is the correct one. The appeal is being heard on an
expedited basis.