H.L.B v. Chatham-Kent Children’s Services, 2012 CFSRB 4

CHILD AND FAMILY SERVICES REVIEW BOARD

H.L.B.

v.

Chatham-Kent Children’s Services

REASONS FOR INTERIM DECISION

Date: February 1, 2012

Citation: 2012 CFSRB 4

Indexed as: H.L.B v. Chatham-Kent Children’s Services

(CFSA s.68)

REASONS FOR INTERIM DECISION

INTRODUCTION

1On July 15, 2010, H.L.B (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Chatham-Kent Children’s Services (the “Society”) pursuant to 68.1 of the Child and Family Services Act (the “Act”). The application was found to be eligible for review on July 26, 2010.

2The Applicant complained that the Society did not provide her with the opportunity to be heard, nor did the Society provide her with reasons for its decision to refuse her request to return her nephew C.F. (the “Child”) to her care in June 2010.

3The Society argued that the Board does not have jurisdiction to hear the application, primarily because the Applicant is not a person who may complain to the Board under section 68.1(4), 4 & 5 of the Act.

4This application which was filed in 2010, was adjourned pending a decision in another case from the Court of Appeal on the Board’s jurisdiction. A pre-hearing was held on October 7, 2011. The hearing was scheduled for November 15, 2011, but was adjourned by the Board for operational reasons. With the consent of the Applicant, the date of January 17, 2012 was then set for the hearing.

5A case management pre-hearing was held via telephone conference on January 16, 2012. The purpose of this pre-hearing was to deal with matters pertaining to confidentiality orders, the disclosure of documents from the Society to the Applicant, the standing of the Applicant’s non-legal representative, the Society’s jurisdiction motion, its request for adjournment following any jurisdiction finding and the witnesses who would testify for both parties.

6The oral hearing commenced on January 17, 2012. The Board dealt with the Society’s renewed request to remove the Applicant’s representative. The Board permitted the representative to remain and reserved its decision on jurisdiction.

7The Board provided the parties with a written jurisdiction ruling, without reasons, on January 18, 2012. The Board ruled that it had jurisdiction under s. 68.1 (4) 5 regarding whether the Applicant had been given reasons for decisions that affected her interests. The Board ruled that it did not have jurisdiction to decide if the Applicant had been heard under s. 68.1 (4) 4.

8The case will proceed to a hearing on the issue of whether the Society gave the Applicant reasons for the decision to refuse to return her nephew to her care pending a treatment placement.

9The Board’s reasons for the decision on the preliminary matters and jurisdiction follow.

BACKGROUND

10The Applicant is the maternal aunt of the Child (now aged 16). The Applicant and the Child’s mother, C.F. (the “Mother”) had a stormy relationship for several years prior to the application. The Applicant maintained contact with the Child throughout this period.

11The Child has a diagnosis of ADHD, Non-verbal Learning Disability and Oppositional Defiance Disorder/Conduct Disorder. The Child receives behavioural medications.

12K.H. the Society’s Family Service Worker for the Mother, approached the Applicant in the autumn of 2009 to discuss the possibility of the Child living with her (the Applicant) in a kinship foster placement. The Applicant abandoned plans to move out west in order to pursue caring for the Child. Following completion of the training requirements and a home study, the Society approached the Applicant and wanted to withdraw funding for the placement. The Applicant challenged this decision because she had put in time being assessed and trained. The Applicant ultimately obtained funding for the placement. The Applicant was approved as a kin in care foster parent on March […], 2010.

13From late-summer 2009, the Child had been residing at the [group home 1] in [city], Ontario. On March […], 2010 the Applicant entered into a “Foster/Kinship In Care Service Agreement” with the Society. That same day, the Child was placed in the home of the Applicant where he remained until June […], 2010.

14A Court Order of April […], 2010 placed the Child in the care of the Society for a period of six (6) months. The Court order included a term that the Society provide the following services for the Child: family service worker, children’s services worker and residential placement.

15On or about June […], 2010 the Applicant contacted the Society and formally asked that the Child be removed from her home. On Friday, June […], 2010 the Applicant took the Child to the Society’s office where she re-affirmed her inability to manage the Child. Later that same day, the Applicant drove the Child to his Mother’s home where he spent the weekend.

16On Monday, June […], 2010 the Applicant picked up the Child and brought him to the Society office. Later that same day, the Applicant and Children’s Service Worker, L.V., attended with the Child at [group home 2], a group home in [city], Ontario where the Child was placed.

17After two days at [group home 2], on June […], 2010 the Child telephoned the Applicant to request a return to her home. That same day, the Applicant subsequently telephoned the Society to request that the Child be returned to her care. During that telephone conversation with the case worker, L.D., the request was denied. On June […], 2010 the Society sent a letter to the Applicant terminating the Foster/Kinship In Care Service Agreement.

18On June […], 2010, the Applicant attended a meeting at the Society. On July […], 2010 the Society convened a meeting with the Applicant and several staff members. According to the Society, the meeting was to discuss its reasons why the Child was not being returned to the Applicant under a kinship in care foster agreement. One week later, on July […], 2010, the Applicant submitted her application to the Board.

a) Transcripts

19The Society engaged the services of a court reporter. The Board ruled that should the Society order a transcript for its own use, the Society must also provide copies of the transcript to both the Board and the Applicant.

b) Society Objection to the Non-legal Representative for the Applicant

20The Applicant engaged Mr. C.C., on a voluntary basis, to be her non-legal representative (”representative”) for the oral hearing. At the case management pre-hearing, the Society had objected to [the representative’s] participation. The Society was concerned about his participation because he was involved in a rally against the Society and he was involved in civil litigation in child welfare matters as part of “Court Watch”. At that time, the Board canvassed the Law Society rules [By-law 4, s. 30 (1) 5] for non-legal representatives with the parties and decided that [the representative] could remain on the case.

21The Board also made a confidentiality order as follows:

Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any document or information shared by the parties and the Board must be used only for the purposes on the hearing of this application by the Board.

Anyone who wishes an exception to this order must do so only with an order of the Board or the Court, as appropriate.

22As confirmed at the oral hearing on January 17, 2012, [the representative] agreed to be bound by the order.

23At the outset of the hearing, the Society renewed its objection to [the representative], stating that it had new information in the nature of probation orders and Facebook entries. The Society’s position was that [the representative] did not prove that he met the Law Society criteria, that he had a political agenda as evidenced by his activities for “Court Watch” and that he had breached confidentiality provisions and was on probation.

24The Board stipulated that only documents that reflected breaches of confidentiality with respect to the current matter before the Board or any other applications that had been before the Board, would be accepted. The Society’s information did not relate to Board proceedings. The Society advised that it did relate to the Act. The Board did not receive the Society’s new information but heard its submissions which made general reference to the documentation.

25The Board controls its own process. The applicable regulation states that the Board can determine who will attend the hearing (Reg 494/06 and Rule 68). Under the regulation and the Board’s rules, an applicant is entitled to have one person of her choosing at the hearing. In this case, the support person chosen by the Applicant is Mr. E of the Office of the Provincial Advocate for Children and Youth. The Board routinely allows representatives for parties (as distinct from support persons). The Law Society [By Law 4, s. 30(1) 5] permits non-legal representation by:

An individual,

i. whose profession or occupation is not and does not include the provision of legal services or the practice of law,

ii. who provides the legal services only for and on behalf of a friend or a neighbour,

iii. who provides the legal services in respect of not more than three matters per year, and

iv. who does not expect and does not receive any compensation, including a fee, gain or reward, direct or indirect, for the provision of the legal services.

26Without evidence to the contrary, the Board accepted [the representative’s] assertions (at the pre-hearing teleconference) that he was not a paralegal, that he was providing services as a friend and that he was not being compensated. The Board did not accept the Society’s argument at the hearing that his alleged political agenda amounted to “compensation” in that it was a “gain” to his advocacy work. The term “gain” and the Law Society definition of compensation are focussed on monetary type benefits. Further, the Society’s submission was speculative.

27In response to the Society’s submission regarding the number of times [the representative] has engaged in representation, the Board asked [the representative] if he had represented any individuals before the Board or the Court last year. His response was that he had not. According to [the representative], this was his first time representing an applicant before the Board in 2012. The Board was satisfied that [the representative] met the Law Society criteria to act in this case as a non-legal representative.

28Existence of a political agenda does not make a person ineligible to represent an individual under the Law Society rules, nor does the existence of a probation order. However, the Board has the authority, where it feels there would be an abuse of its process, to remove a representative who otherwise meets the Law Society requirements. The parties acknowledged that [the representative] had been involved in Board proceedings in the past. There was no evidence that [the representative] had abused the Board’s process in the past or in this matter. There was some speculation that he might, based on past actions in other venues.

29The Board is very concerned about respecting the confidentiality of its process. In addition, as [the representative] submitted, the administrative tribunal process is meant to be accessible and should not over-burden an applicant. Having a voluntary representative who is familiar with the work of the Board contributes to accessibility. The Board is satisfied that [the representative] will respect its process in this matter, based on his undertaking to do so and the fact that he has been involved with this Board before and there is no evidence of a breach of this Board’s process. However, based on the submissions of the Society, the Board warned [the representative] that no breaches will be tolerated. Should the Applicant, through [the representative], wish to use the information in this application in civil court, she and [the representative] have agreed to seek an order of this Board or the Court. The Board has emphasized that this proceeding is not to be used as “discovery” for another proceeding.

30The Board ruled that [the representative] could participate in the oral hearing as the representative of the Applicant, subject to abiding by the Confidentiality Order.

31The Board further clarified the intent of the order as a “blanket order”, meaning that all information, whether written or spoken and at any stage of the proceeding, is covered by the confidentiality order. The Board advised that if there were any alleged breaches, they should be brought to the Board’s attention immediately and that the Board would deal with them.

c) Disclosure of Documents

32At the hearing, the Applicant’s representative questioned the decision made during the pre-hearing teleconference of January 16, 2012 to not order disclosure of the notes of the Society’s witnesses. The Board’s decision was that it would deal with this matter if it found jurisdiction to proceed to an oral hearing on the merits of the application.

d) The Board’s Jurisdiction to Hear the Application

33The Society brought a motion to challenge the Board’s jurisdiction to hear the application under both section 68.1(4)(4) and section 68.1(4)(5) of the Act.

34The following provisions in the Act are relevant:

68.1(1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may

(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section;

3 (1)

In this Act,

“service” means,

(a) a child development service;

(b) a child treatment service;

(c) a child welfare service;

(d) a community support service, or

(e) a youth justice service;

“child welfare service” means

(a) a residential or non-residential service including a prevention service;

(b) a service provided under Part III (Child Protection);

(c) a service provided under Part VII (Adoption), or

(d) individual or family counselling;

ANALYSIS

Jurisdiction Decision

35The Board must first determine if it has the authority to hear this complaint. The first issue the Board will address is whether the subject of this complaint is before the Court or was decided by the Court. Second, the Board will look at whether the Applicant was a parent and thus, entitled to be heard and to complain under section 68.1 (4) 4 of the Act. Finally, the Board will deal with the issue of whether the Applicant sought or received a service and if so, whether her “reasons” complaint, related to a decision that affected her interests under section 68.1 (4) 5 of the Act.

36First, the Board finds that the subject matter of this complaint has not been decided by and is not before the Court.

37The Society submitted that the matters being complained about by the Applicant were matters that had been before the Court and that the Board lacked the authority to hear them under section 68.1(8) of the Act which states:

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;

38The Court of Appeal for Ontario released a ruling on matters similar to this on June 9, 2011 in Children’s Aid Society of Waterloo v. D.D. 2011 ONCA 441 (leave to appeal to S.C.C. denied). The Court found that there is a distinct difference between what it does and what the Board may do.

The complaints that D.D. brought to the CFSRB did not relate to the protection application per se and, indeed, would in all likelihood be considered irrelevant to it. Her complaints related to the manner in which CAS delivered its services and its failure to address her complaints. [para 36]

The court and the CFSRB are concerned with different issues. The court, of course, is engaged in a determination of the best interests of D.D.’s children in terms of where they should live in the long term. The CFSRB, in this instance, is concerned with whether the CAS is carrying out is statutory mandate in terms of its dealings with D.D. in the short term, while matters are pending before the court. [para 42]

39While the Child was residing in a group home, the Society sought a kinship placement with the Applicant. On March […], 2010, the kinship placement of the Child into the home of the Applicant occurred. The Court made an order on April […], 2010 that the Child was in need of protection. The Court did not order this specific placement, nor did it order any specific counselling services for the Child while residing at the placement. The placement broke down in June of 2010 and the application to the Board was filed on July 15, 2010. On November […], 2010 the Applicant filed an interim motion to be added as a party to the child protection proceedings. The Court denied the motion on January […], 2011 and ruled at that time that the Child not be placed with her.

40The matters contained in the Applicant’s complaint relate to her communications with the Society. As such, the complaint does not concern matters that have been decided by the Court; nor are they matters currently before the Court. The Applicant’s motion to be added as a party to the child protection proceedings was made after her application to the Board. While the Court did order that the child not reside with the Applicant at that time, it made no ruling on the time frame in question or the service concerns raised in the application.

41The Board finds that the Applicant’s complaint is not before and was not decided by the Court.

42The Board must now determine if the Board has the authority to review the complaints for alleged breaches of the right to be heard [ 68.1(4) 4] and/or the right to reasons [68.1 (4) 5].

Section 68.1(4)4 (Right to be Heard)

43The Board does not have the authority to proceed with this application on the basis of a parent’s right to be heard.

44The Applicant testified that she did not consider herself to be a “parent” to the Child. Her representative confirmed that she was not seeking to be treated as a parent in this proceeding.

45A complainant who is a parent has a right to assert under section 68.1 (4) 4 that she was not heard by a society in certain circumstances. This right comes from section 2(2)(a) of the Act which states:

Service providers shall ensure,

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

46Section 37(1) of the Act provides the definition of “parent”.

In this Part,

“parent”, when used in reference to a child, means each of,

(e) an individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child,

but does not include a foster parent.

47The Applicant does not meet the definition of parent in the Act.

48The Board initially found this application eligible to proceed through the process on the basis of section 68.1 (4) 4. Now, based on further clarification, the Applicant’s position and the evidence, the Board finds the Applicant is not a parent. As such, the Applicant is not entitled to be heard under subsection 2 (2) (a) of the Act. Therefore, the Board lacks jurisdiction to deal with this complaint under section 68.1(4) 4.

a) Section 68.1(4) 5 (Reasons for Decision)

49Under section 68.1(4)(5) of the Act, a complainant who has sought or received a service, has a right to reasons for a decision that affects her interests. The Board finds that it can hear the Applicant’s complaints in this regard.

50First, the Board had to determine if the Applicant sought or received a service. The Society submitted that the Applicant did not seek or receive services from the Society. The Society argued that the Applicant provided a service to the Society by opening her home, on a paid contractual basis, as a placement for the Child. Furthermore the Society submitted that most of the services sought by the Applicant were for the Child, not herself. In terms of whether the Applicant sought or received a service, the Board looked at the language of the Act, the broader question of whether a kin foster parent is different from a regular foster parent and can seek a service and then at the narrower question of whether the Applicant in fact sought services.

Statutory Language

51Looking at the statute, the Society’s obligation to provide reasons in section 68.1 (4) 5 is not confined to “parents”. If that were the case, the obligation would be associated with section 2 (2) (a) of the Act, like the right to be heard. The right to reasons for decisions that affect one’s interests is broad and recognizes that there may be persons other than parents who are involved with children under the Act and whose lives may be impacted by Society decisions. For example, the Board has held that foster parents or teachers who are the subject of an investigation by a society, are receiving a service and are entitled to reasons relating to the decisions made in the investigation. The Board has also held that grandparents who have sought access to their grandchildren from a society that controls access have a right to reasons.

Kin foster care versus Regular foster care: Is there a difference?

52The Society’s main argument was that the Applicant could not receive a service because she was a foster parent and thus, a service provider. The Applicant submitted that she had a strong bond to the Child as family that was recognized by the Society. The Society sought her out for placement and she had a care giving role that incorporated knowledge of and involvement with the Child that made her different from regular foster parents.

53Kin who have a relationship with a child and who have demonstrated a commitment to the child, have a status that is distinct from regular foster parents. The Applicant gave up her plans to move to care for the Child. She engaged in several months of preparation. She cared for the Child and advocated for supports for him and for her to be able to better care for him. She had regular contact with the Child prior to his placement with her, including attendance at plans of care. The Society let her keep her dogs. Her worker told her that she would not have been allowed to keep the dogs under regular foster care. She assisted her nephew with things like medication withdrawal and helped him plan access visits with his mother; things a family member would do. When he lived in a group home following the placement with her, the group home contacted her and not the Society when he ran away. She went out to look for him on more than one occasion and returned him to the group home. The Applicant believed that she had a family bond with the Child and that this relationship was acknowledged by the Society and the group home.

54The Applicant, as a kin foster parent, is distinct from regular foster parents because she had an existing relationship with the Child and was committed to the Child. She was not a stranger to the Child who had a purely contractual relationship with the Society. Rather, she was someone who entered into a contractual relationship with the Society so that she could care for a child who was a member of her family. The fact that she was remunerated at the same level as regular foster parents or that she fought for remuneration when the Society planned to withdraw financial support for the placement, does not change the core difference that a bond exists.

55The regular foster parent bond is recognized in the Act as it develops; after six months (notice of child protection proceedings) and two years of living with a crown ward (s. 61 right to review of proposed removal of child). The Act recognizes the unique and pre-existing role of kin including in the best interest considerations [s.37 (3) 6]. The kin foster parent route is a vehicle to facilitate the relationship but does not mean that kin are in the same category as regular foster parents. For example, in child protection proceedings, prior to making a temporary order the court must consider if it is in the child’s best interests to be placed with kin [s. 51 (3.1)]. Kin foster parents are included in this requirement under the Act. In fact, the creation of the kin foster parent relationship is one way of meeting this obligation by ensuring that available kin can step in to care for a child. This enables family members who want to assist in caring for the child to do so. The Court has no such obligation at this stage in the process, to consider placement with regular foster parents.

56In the past, the Board has ruled that foster parents (who are not the subject of an investigation) are service providers only and as such do not seek or receive service. The Board in one case has also said that a kin foster parent who wanted the children returned to her care was also not seeking a service. The Board’s previous rulings do not bind this panel. The Board can look at each case individually. The Board has heard evidence in this case which has convinced the Board, that while the Applicant was providing a service, she was also seeking a service as kin to the Child, given her particular relationship with her nephew. The two are not mutually exclusive.

Did the Applicant Seek A Service From the Society?

57Section 68.1 of the Act states that “if a complaint in respect of a service sought or received from a society relates to matter described in subsection (4) the person who sought or received the service may apply directly to the Board. Section 68 (1) which involves complaints to the Society states that “a person may make a complaint to a society relating to a service sought or received by that person from the society in accordance with the regulations”. The Society submitted that the Applicant sought services for the Child and not for herself. It is not clear that applicants who apply directly to the Board must be seeking a service for themselves. Arguably, they could be seeking a service for a child or family member. The more restrictive language (“by that person”) only appears in section 68 (1). In any case, the Applicant testified that she asked for a range of services from the Society for herself leading up to and including her request to have the Child returned to her care.

58The Board heard evidence that the Applicant had asked for counselling for herself and the Child several times between March […], 2010 and mid-May, 2010. She indicated that she also sought parenting courses to assist her with the Child and she asked for extra home visits by the Society staff. The Applicant felt these services were necessary as she coped with the challenges being presented by the Child. The Applicant testified that the Society did follow-up on some of her requests for her needs, i.e. providing her with access to a parenting class.

59The Board finds that the Applicant was seeking services related to the placement of the Child with her. She sought a service when she sought counselling for herself and when she asked for additional help (extra home visits), to cope with problems handling the Child in her home.

60The Applicant also sought a service when she asked for permission for the Child to return to her home with supports until a residential treatment based option was available. This is the placement related service about which she made her complaint. This was a child protection service, consistent with the priority given to kin under the child protection provisions of the Act, to help her maintain her relationship with and care giving role for the Child, her nephew. The Applicant underwent an assessment for kin placement; that assessment was a service provided by the Society in carrying out its work under Part III, the Child Protection section of the Act. The kin placement related to a child who was the subject of child protection proceedings, as part of the Society’s practice and the Court’s obligation to consider at least temporary placements with relatives. The request to have the Child placed with her again: to be re-assessed or re-considered as a kin placement was a request for a continuation of the assessment and placement services for a potential kin caregiver, relating to a child who was in care as a child in need of protection, under Part III of the Act.

61Having determined that the Applicant sought a service from the society, the next issue is whether her complaint relates to an alleged lack of reasons for a decision that affected her interests. The pertinent questions are: was a decision made and did it affect her interests? The relevant time frame is up to the date of the application, July 15, 2010.

62Subsequent to her request made on or about June […], 2010 to have the Child removed from her home, the Child was placed at [group home 2] on June […], 2010. Two days later on June […], 2010, the Child telephoned the Applicant and asked to be returned to her care immediately. The Applicant called the Society with the same request – “please return the Child to my care”. The Applicant alleges that she offered to have the Child returned to her with or without compensation as she was concerned about his safety. She wanted the Child returned to her until a treatment based placement could be found.

63A decision was made that the Child would not be returned to the Applicant’s care. The Society mailed a letter to the Applicant on June […], 2010 stating that the Child would not be returned to her care. The Society had a meeting with the Applicant on June […], 2010 and also scheduled a meeting for July […], 2010 to discuss the decision. Clearly, a decision was made.

64The Applicant had an interest, as an aunt, in her relationship with her nephew. She had gone out of her way to bring him into her home initially, to care for him and to look out for his needs, when he was no longer in her home. Whether or not the Child would be placed with her affected her interests as a kin who had been a caregiver and who cared. Whether or not she would be considered as an appropriate re-placement for the Child, impacted on her future. Further, the Society’s assessment of her as a potential caregiver necessarily involved judgments about her personal skills and attributes, clearly impacting her.

65The Board finds that the Applicant’s allegations regarding not receiving reasons for the Society’s decision not to return the Child to her care, is a decision that affected her interests.

66In summary, the Applicant as a kin foster parent was entitled to and did seek a service from the Society. The Applicant was entitled to make a complaint that she had not been given reasons for the decision not to return her nephew to her care: a decision that affected her interests.

DECISION

67The Board has the authority to review the complaint under section 68.1(4) 5 of the Act. The hearing will proceed on this basis. The Board has no jurisdiction to review the complaint under section 68.1(4) 4 of the Act.