L.W. v. CAS of Northumberland, 2008 CFSRB 81

CHILD AND FAMILY SERVICES REVIEW BOARD

L.W.

v.

Children’s Aid Society of Northumberland

REASONS FOR DECISION ON JURISDICTION

Date: August 25, 2008

Citation: 2008 CFSRB 81

Indexed as: L.W. v. CAS of Northumberland (CFSA s.68)

Related Decisions: Reasons for Decisions on Merits - L.W. v. CAS of Northumberland (CFSA s.68), 2008 CFSRB 103

INTRODUCTION

1These are the reasons of the Child and Family Services Review Board (the “Board”) on a preliminary motion regarding the Board’s jurisdiction to hear an application made by L.W. (the “Applicant”) under section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”) against the Children’s Aid Society of Northumberland (the “Society”).

2The Applicant’s daughter was placed with the father, S.W., for a period of six months, subject to society supervision under a Court Order granted on consent on October […], 2007. Provisions were made for access visits by the mother, L.W.. The judge, in a Court Order of April […], 2008, placed the child with S.W..

3The Applicant’s allegations are as follows:

1. The Society refused to investigate on two occasions her child protection concerns for her daughter, S., who is in the care of her ex-spouse, S.W..

(a) On April […], 2008, she reported that there was drug use by her ex-spouse and his friends at the home of her child.

(b) On May […], 2008, she reported that S. had bruises and wanted the Society to investigate her care at W.W.D..

2. The Applicant was late for an access visit with her daughter at the Society’s office. She was treated badly by Society workers who did not want to let her see her daughter.

3. I.C. spoke to the Applicant’s doctor, Dr. S., saying that she had consent from the Applicant to release information. The Applicant alleges that I.C. lied and breached her right to privacy.

4. The Applicant requested on March […], 2008 that B.C. be removed from her file. She was not removed until June […], 2008.

5. The Applicant requested that a hair follicle test for drugs be done on March […], 2008. This was not done until April […], 2008.

6. The Society did not give her reasons why she should not get more access visits with her daughter.

7. The Society is biased in favour of her ex-spouse.

8. In a child protection application the Society was late in serving her court papers.

4The Society’s position is that the Board should not be conducting a review of the complaints as they relate to issues that are currently before the Superior Court of Justice – Family Court in [ ] in a status review proceeding. This process was commenced in February and is still ongoing. The Society brought a motion challenging the jurisdiction of the Board to hear this application.

RELEVANT LEGISLATION

Matters for Board review

68.1(4) The following matters may be reviewed by the Board under this section:

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68(1) as required under subsection 68(2).

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

4. Allegations that the society has failed to comply with clause 2(2)(a).

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

Duties of service providers

2(2)Service providers shall ensure,

(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.

No review if matter within purview of court

68.1(8) The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court; or

(b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995.

ANALYSIS

Issue 1: Refusal of the Society to investigate child protection concerns.

5The Society argued that in the status review proceeding that commenced in February 2008 the Applicant filed a motion asking for the child to be placed with her. In the pleadings, the Applicant put forth the incidents of drug use by the father and the incidents at W.W.D.. The Society submits that these issues are before the Court.

6The Board finds that it has jurisdiction to hear this complaint under subsection 68.1(4)(4) of the Act. As a parent, the Applicant is alleging that the Society did not listen to her concerns for the safety of her child. The Board finds that these issues may be before the Court in the determination of the placement of the child, but the Court will not make a determination on whether the Applicant was heard by the Society when she reported these incidents.

Issue 2: Incident of late access visit.

7The Society argued that this issue is before the Court in the same status review proceeding under a section entitled “concerns of Ms. B.C.”.

8The Board finds that it has jurisdiction to hear this complaint under subsection 68.1(4)(4) of the Act. The Applicant is complaining about the treatment she received from society workers. As a parent receiving a service, she has a right to be heard regarding her concerns. This incident is listed in court papers, but the Court will not make a determination of whether the Applicant’s complaint was heard by the Society.

Issue 3: Issue of Breach of Privacy.

9The Society conceded that this issue was not before the Court.

10The Applicant is alleging that the Society gained access to her private medical information through inappropriate means. She is saying that the Society worker lied about her consent. The Board finds that it has jurisdiction to hear this issue under subsection 68.1(4)(4) of the Act which gives the Applicant the right under subsection 2(2)(a) to be heard.

Issue 4: Request to remove B.C. from her file.

11The Society argued that B.C. has been removed from the Applicant’s file and another worker has assumed the file. The Society considers that the issue has been resolved.

12The Applicant stated that the Society was late in removing B.C. despite the Applicant’s complaints. The Applicant’s request was not initially heard by the Society. The Board finds that it has jurisdiction to hear this issue under subsection 68.1(4)(4) of the Act which gives the Applicant the right under subsection 2(2)(a) to be heard.

Issue 5: Request for hair follicle testing.

13The Society argued that this issue is before the Court in the status review proceeding and, as such, is beyond the jurisdiction of the Board.

14The Applicant is complaining that she asked for hair follicle testing to prove that she was not on drugs and the Society refused her request. Her request was not initially heard by the Society. The hair follicle testing was eventually done on April […], 2008. The Board finds that it has the jurisdiction to hear this complaint under section 68.1(4)(4) of the Act.

Issue 6: Reasons why she is not getting more access.

15The Society argued that access is an issue which is decided by the Court and that the current court proceeding will determine access by the Applicant.

16The Applicant is asking for reasons why she should not be getting more visitations with her daughter. She wants to know what she needs to do in order to get more access. The Board finds that it has jurisdiction to hear this complaint under subsection 68.1(4)(5) of the Act which states that the Board may review matters when there are allegations that the Society has failed to provide reasons for decisions which affect the complainant’s interests.

Issue 7: The Society is biased towards her ex-spouse.

17The Society argued that this issue is before the Court. A section 54 assessment has been ordered by the Court and a third party will assess the two parents.

18The Applicant alleges that the Society has not listened to her, but has always listened to S.W. and provided him with support. When S.W. faxed the Society a list of prescription drugs the Applicant was taking, the Society took her baby away; however, the Society did not test him for drug use. The Board finds that it has jurisdiction to hear this issue under subsection 68.1(4)(4) of the Act.

Issue 8: Court documents served late.

19The Society argued that Court documents should be dealt with by the Courts.

20The Board finds that Court documents in a proceeding are under the purview of the Court and any complaints of late documents should be addressed by the Court. The Board finds that it does not have jurisdiction to hear this complaint.

DECISION

21The Board finds that it has jurisdiction to hear issues 1 to 7.

22The Board finds that it does not have jurisdiction to hear issue 8.

23During the hearing on jurisdiction, the Board was advised that some of the complaints numbered 1 to 7 have been resolved. The matter will now be referred to a Settlement Facilitator to determine by way of teleconference whether any of those complaints have been settled and whether the settlement has been implemented. If the Settlement Facilitator determines that some of the complaints have not been resolved, this panel will hear the merits of only those complaints. The Board will not hear the merits of the complaints that have been settled.

Donald Butler Presiding Member

Ruth Ann Schedlich Panel Member

Mary Wong Panel Member