C.G. v. Family and Children’s Services of Guelph and Wellington County, 2009 CFSRB 54

CHILD AND FAMILY SERVICES REVIEW BOARD

C.G.

v.

Family and Children’s Services of Guelph and Wellington County

REASONS FOR DECISION ON JURISDICTION

Date: October 9, 2009

Citation: 2009 CFSRB 54

Indexed as: C.G. v. F&CS of Guelph and Wellington County (CFSA s.68)

INTRODUCTION

1C.G. (“Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on July 20, 2009 under section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The Applicant is asking the Board to review her complaints about the Family and Children’s Services of Guelph and Wellington County (the “Society”).

2A pre-hearing took place on August 28, 2009. The Applicant listed her complaints and the Society took the position that the Board does not have jurisdiction to hear them because they are all before the Court. It was determined at the pre-hearing, that the Board will hear the motion on jurisdiction first and if the Board finds that it has jurisdiction, it will proceed to hear the merits of the application on a date to be determined by the Board.

3A hearing was held on September 23, 2009 in [X]. The Board first made a determination on the support person who could be present at the jurisdiction hearing. The Board then identified and clarified the Applicant’s complaints and proceeded to hear the Society’s motion on jurisdiction.

BACKGROUND

4The Applicant is the mother of the child, B.G., born December […], 2008. The Society apprehended the child on January […], 2009 after a small bulge on the left side of her skull was discovered at the hospital on January […], 2009. This bump was later identified as a scalp haematoma after a CT scan. The child was placed in foster care where she remains today .The Applicant has access to her daughter.

5The Society is bringing a Summary Judgment motion seeking a Crown Wardship Order, with no access to the Applicant, which is scheduled to be heard on November […], 2009.

SUPPORT PERSON

6Under the Board’s Rules of Procedure, all hearings are held in camera, that is, with all witnesses and the public excluded. However, an Applicant is permitted by Rule 68(b) to have a support person present during the hearing. Rule 68(b) reads as follows:

68. In addition to the applicant and the Society, the Board may determine that the following persons may attend the hearing:

b) one other person of the applicant’s choosing.

7The Applicant attended at the hearing with all of the witnesses she intended to call at the hearing on the merits of the application, including T.G1. her sister. The Applicant, on being advised of the above-noted Rules, stated that she wanted her sister to be her support person at the jurisdiction hearing.

8The Society waived any objection to T.G1. remaining as the Applicant’s support person during the motion on jurisdiction and then later testifying as a witness if the application proceeds on the merits.

9As such, the Board determined that T.G1. could attend as the Applicant’s support person during this hearing.

APPLICANT’S COMPLAINTS

10On consent of both parties, the Applicant’s complaints to the Board, as discussed at the pre-hearing, were identified and reformulated by the panel at this hearing. Her complaints, within the context of the legislation, are set out as follows:

1. The Society failed to listen to the Applicant, prior to her child being apprehended, when the Society failed to look at pictures of the child provided by the Applicant that showed that the child was born with the bump on her head.

2. The Society did not listen to her concern about the shortcomings of the access arrangement, which meant that many of her visits were cancelled even though she had called and left messages for the worker or the duty worker. Although she raised her concern about this arrangement, no other arrangements were made and the Society did not give her reasons for not doing so.

3. The Society did not listen to her concern that T.G2., her Service Worker, was not being honest with her when:

a. the worker would advise her that she could attend doctors’ appointments and on the day of the appointment, would tell her that she could not attend; and

b. the worker told her that the Society would ensure that her missed access visits would be made up, but no arrangements were made to do so.

Further, the Society did not provide her with reasons for these decisions.

4. The Society did not listen to her when she raised concerns about the care of her child. Specifically, about her child's asthma, the outcome of the medical appointments or the outcome of their investigation into the bruises found between her child's legs.

11Upon hearing the issues above, the Society indicated that it was prepared to proceed to argue the motion on jurisdiction.

JURISDICTION

12The issue is whether the Board has jurisdiction to hear the Applicant’s complaints under sections 68.1 (4)4 and 68.1(4)5 of the Act. The Board found that it has jurisdiction to review complaints number 1, 2, 3 and 4 for the reasons as set out below.

13The application was deemed eligible for review pursuant to section 68.1 (4) 4, which incorporates section 2(2)(a), and section 68.1 (4) 5 of the Act which provide that:

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

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.

s. 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.

14The Society in its oral motion challenged the jurisdiction of the Board to hear the Applicant’s complaints and relied on section 68.1 (8)(a) of the Act which states that:

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.

15The Board will now address each complaint.

Complaint 1

The Society failed to listen to the Applicant, prior to her child being apprehended, when the Society failed to look at pictures of the child provided by the Applicant that showed that the child was born with the bump on her head.

16The Society argued that the issue of the child’s bump is one of the many serious issues raised in the Society’s Application for Crown Wardship. The Society further argued that if the Court finds that the Society did not consider other possible causes for the bump on the child’s skull, then the Society’s Application will fail. As such, the Society took the position that this complaint is before the Court and will be before the Court at the Summary Judgment motion in November 2009 and cannot be reviewed by the Board.

17The Applicant argued that this complaint can be reviewed by the Board because the issue of whether or not the worker looked at the pictures she provided prior to apprehension is not a issue that has been or will be decided by the Court.

18The Board agrees with the Applicant and finds that it has jurisdiction to review this complaint. The Court, not the Board, has the statutory mandate to make substantive child protection, custody and access decisions. The Board’s mandate under the Act is to address an applicant’s right to be heard when the Society delivers services and makes decisions.

19Under subsections 68.1(4)4 and 68.1(4)5, the Board must ensure that the Society listened to the Applicant and provided her with reasons for decisions which affect her and her child’s lives, as required by statute. If the Court has the decision-making authority over the issue, the Board has no role. However, if the Society has the decision-making authority, for example, on how a child protection investigation will be conducted, then the Board has the mandate to ensure that the Society has met its obligations when delivering this service.

20Some of the facts that appear in Court Applications and applications before the Board are similar. Information that is contained in an affidavit that is filed with the Court is not necessarily an issue that will or must be determined by the Court. Some of the issues that fall within the Board’s mandate may or will be decided by the Court. The Board has previously determined that for an issue to be beyond the jurisdiction of this Board, the Court must be clearly in a position to either address or have made a determination on the issue.

21In this situation, the Applicant is alleging that the Society did not listen to her prior to her child being apprehended when the worker failed to look at the photographs that she provided. The issue, which is currently before the Court, is whether this child is in need of protection and whether a Crown Wardship Order is necessary to protect the child in the future.

22The Court is not making a determination about the service provided by the Society worker at the time before and up to when the child was apprehended. The Applicant has the right under s.2(2)(a) of the Act to have a say in and be kept informed of decisions made by the Society which affect her and her child and the Board’s mandate is to determine if this right was respected. As such, the Board finds that this complaint is not before the court and therefore, the Board had jurisdiction to hear it.

Complaint 2

The Society did not listen to her concern about the shortcomings of the access arrangement, which meant that many of her visits were cancelled even though she had called and left messages for the worker and or the duty worker. Although she raised her concern about this arrangement, no other arrangements were made and the Society did not give her reasons for not doing so.

23The Society took the position that this matter, which relates to access, was and will be before the Court and that the Board does not have jurisdiction to review this complaint. The Society argued that whether or not the Applicant has access is clearly before the Court and that this arrangement was implemented in the child’s best interests. He further argued that it is within the purview of the Court to review and assess whether this arrangement is or was fair and that the Court will then decide if the Crown Wardship Order sought will be granted with or without access to the Applicant.

24The Applicant argued that although access was determined by the Court, the arrangements to facilitate access, that is, calling in on the morning of the scheduled access visit, was not.

25The Board finds that it is within the Board’s mandate to determine whether the Applicant’s concerns about the arrangement were heard. In this situation, the Court determined that the Applicant should have access to her child. The Society, under this statutory scheme, has the delegated authority to determine the arrangements which must be made to facilitate this access. As stated above, the Board’s mandate is to review decisions made by the Society, with reference to the Society’s obligations. Whether or not the Applicant continues to have access to her child, will be determined by the Court, however, whether the Society listened to the Applicant’s concern or provided her with reasons for the current access arrangement is not. The Board, under subsections 68.1(4)4 and 68.1(4)5, has oversight over the communications with and the treatment of parents when decisions affecting their interests are made.

26Therefore, the Board has jurisdiction to review this complaint.

Complaint 3

The Society did not listen to her concern that T.G2., her Service Worker, was not being honest with her nor did she provide her with reasons for the following decisions.

a. the worker would advise her that she could attend doctors’ appointments and on the day of the appointment, would tell her that she could not attend;

27The Society stated that it was not averse to dealing with service issues, which it agrees are within the Board’s purview, however in this situation, the Society believes that the complaint before the Board is premature. The Society argued that service issues and substance issues are inextricably linked and that to subject a worker to extensive cross examination at the Board’s hearing would interfere with the worker’s ability to testify at trial. Therefore the Society’s position is that the hearing of this complaint should be adjourned pending a final disposition of the child protection application which is before the Court.

28There is no requirement in the legislation that the Board should not fulfill its statutory mandate when there are contemporaneous court proceedings. The worker will provide sworn testimony to both the Court and the Board. The statements made in one proceeding cannot be used in the other. As stated above, the hearing before the Board is in camera and there is no transcript of the proceedings. Therefore, the Board finds that it is not premature to conduct a hearing of this complaint prior to trial. As such, the Board will review this complaint at the hearing on the merits of the application.

b. the worker told her that the Society would ensure that her missed access visits would be made up, but no arrangements were made to do so.

29The Society took the position that the Board does not have jurisdiction to deal with this complaint because the issue of making up access is squarely before the Court. The Society argued that the issue of whether or not the missed access could be made up or should be made up should have be raised by the Applicant, who is represented by counsel, in Court and the Court could have made a decision on it.

30The Applicant argued that although the issue of the missed access visits was raised in Court, the Court did not deal with it.

31The Board finds that it can review both aspects of this complaint because the Applicant has concerns about the services she received from the Society and does not believe that these concerns were heard. Communication between parents and the Society, when parents have concerns about the services they are receiving, is within the purview of the Board. The fact that this Applicant had concerns about how honest this worker had been with her, goes to the heart of communications. The Board does not have the authority to determine if the worker was honest with the Applicant, but it does have the authority to determine if the Society heard these concerns and responded to them. As such, the Board has jurisdiction to review this complaint.

Complaint 4

The Society did not listen to her when she raised concerns about the care of her child. Specifically, about her child's asthma, the outcome of the medical appointments or the outcome of their investigation into the bruises found between her child's legs.

32The Society took the position that this complaint cannot be reviewed by the Board because if there are unexplained bruises on the child, or the child developed asthma while in the care of the Society, then the Court can determine if the child should be moved from the foster home. The Society further argued that if the Applicant had these concerns, she could have instructed her counsel to bring an application to the Court to have this matter dealt with.

33The Applicant argued that her complaint is that she did not believe she was heard because she was not given answers or explanations when she raised these concerns. She therefore took the position that this was not and will not be before the Court.

34The Board finds that it has jurisdiction to hear this complaint. The Society has the delegated authority to find suitable homes for children who are placed in their care. At that point, parents, who no longer have primary care of their child, are anxious to obtain answers to concerns they may have about the child. In this case, the Board’s mandate is to ensure that the Society listened to these concerns and provided its response in a clear and timely manner. Therefore, the Applicant’s complaint falls within the purview of this Board.

CONCLUSION

35The complaints raised by the Applicant are within the purview of the Board because they all relate to whether the Society met its statutory obligations and listened to the Applicant and communicated reasons for decisions which affected her life and that of her child. This is the mandate which the Board has been given under subsections 68.1(4)4 and 68.1(4)5 of the Act. As such, the Board will proceed to hear the merits of the Applicant’s complaints.

Denyse Diaz

Presiding Member

Nycole Roy

Panel Member

Mary Wong

Panel Member