KH v. Children's Aid Society of Toronto, 2017 CFSRB 21

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

KH and TH

Applicants

• and -

CHILDREN'S AID SOCIETY OF TORONTO

Respondent

REASONS FOR DECISION ON JURISDICTION

Date: August 1, 2017

File Number: CA17-0113; CA17-0116

Citation: 2017 CFSRB 21

Indexed as: KH v. Children's Aid Society of Toronto (CFSA s.68)

INTRODUCTION

1KH and TH (together the "Applicants") both submitted applications to the Child and Family Services Review Board (the "Board"), respectively dated May 15, 2017, and May 17, 2017, requesting a review of the actions of the Children’s Aid Society of Toronto, regarding the services received respectively by their grandson and nephew.

2The two applications were submitted under the Child and Family Services Act, RSO 1990 c.C11, as amended (the "Act"). As the two applications were substantially similar and were focused on the same child, the two applications were joined, on consent, and will be dealt with as one.

3Both Applicants complain that the Society has failed to listen and act upon their expressed concerns, and has failed to give them reasons for decisions the Society has

made regarding services that the Child and his mother have received from the Society, and thus failed to comply with section 68.1(4)4 and5 of the Act.

BACKGROUND

4The case is centred on the child J (the "Child"), born in 2015.

5The mother of the Child is LH, who is a younger daughter of the Applicant KH.

6KH is the maternal grandmother of the Child. TH is the older daughter of KH and the aunt of the Child. TH has spent some time living with the Child and the Child’s mother. Both Applicants KH and TH acknowledge that they are not the parent of the Child.

7Two teleconferences were held on June 5, 2017, and July 13, 2017, regarding the issue of jurisdiction. Participants in both teleconferences were KH and TH, as the Applicants. The Society was represented by NH (legal counsel), CT (supervisor), and VS (worker).

JURISDICTION – THE APPLICANTS’ POSITION

8The subject matter in the two original applications is very similar. Both Applicants complain that, even though they have made the Society aware on many occasions of their concerns about the Child’s safety and the high-risk behaviours of the Child’s mother, the Society has not really listened or given due credibility to the seriousness and intensity of their concerns. As well, both Applicants feel left out of any decision- making process, and that they were not given reasons behind many of the decisions made by the Society. In particular, they question why the Society let the Child’s mother take the Child out of the Toronto area, and move to a northern city, without the Society alerting the local Society in the northern city about their concerns about this family. Their complaint is that the Society has not done enough in view of the significant problems in the Childs’ family, namely physical neglect of the Child, emotional abuse, lack of physical safety, and various other concerns.

9The Applicants believe that the Society has failed to provide the services that were required in this case, and that it has failed to ensure that various plans for improvement were implemented.

10As well, since the Applicants believe that the Society has failed to provide the required services, they say “the Society must be held accountable”.

11For the above reasons, the Applicants’ position is that the Board needs to conduct a review of the Society’s actions in this case.

JURISDICTION – THE SOCIETY’S POSITION

12The Society, in its correspondence dated May 18, 2017, addressed to the Board, has stated its position regarding jurisdiction. The Society’s position is that the two Applicants, KH and TH, are not persons who have sought or received services from the Society, within the meaning of section 68.1(1) of the Act, and therefore are not entitled to request a review of their complaint by the Board.

13As well, the Society also states that it does not have the required consents and/or releases it would need to respond to the specific allegations made by the Applicants.

14For the above two reasons, the Society’s position is that the Board does not have jurisdiction to conduct a review of the Society’s actions in this case.

ANALYSIS ON JURISDICTION

15The Board must determine if it has the authority to hear this complaint. The Board’s jurisdiction to deal with any application is set out by statute and all of the requirements must be met before the Board has jurisdiction over a matter. The jurisdiction of the Board to review direct complaints to the Board is set out as follows in the Act.

16The following sections of the Act are relevant to this Application:

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;

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.

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;

3(1) In this Act, “service” means,

(a) a child development service; (a) 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; “parent” is defined as

(a) the person who has lawful custody of the child; or

(b) if more than one person has lawful custody of the child, all of the persons who have lawful custody of the child […].

17Under section 68.1 of the Act an applicant making a request to the Board must meet three requirements in order for the Board to have jurisdiction over the matter. The requirements are as follows: 1) the applicant must be a person who sought or received

services from a society, 2) the complaint must be in respect to the service sought or received, and 3) the complaint must relate to one of the matters listed in subsection

68.1(4) of the Act.

18The Act provides five definitions of “service” including (c) a child welfare service. The Act further provides four definitions of a child welfare service including (b) a service provided under part III (Child Protection). The matter currently before the Board falls under the child protection portion of a child welfare service. The service requirements for societies in this part of the Act refer to investigations of alleged abuse, protection measures for children and counselling programs for both children and their parents or legal guardians.

19The Act is precise and explicit in defining who may make a complaint to the Board. In the requirement for “being heard”, spelled out in s. 2(2)(a), the Act clearly limits this clause to children and their parents. In the requirement for “being given reasons”, the act clearly specifies that the complainant must be seeking or receiving a service from the Society.

20The Applicants have acknowledged that they are neither the parent of the Child, nor have they for any period of time had custody or the complete responsibility for the Child. The Child has consistently remained under the care and custody of the Child’s mother. Applicant TH informed the Board that she has lived in the home of the Child’s mother, and frequently has provided for the Child’s physical and emotional needs during the periods that the Child’s mother was not able to do so because of her emotional and behavioural problems.

21The Applicants have never had custody of the Child. They are the grandparent and aunt of the Child. They did not seek or receive a child protection service as defined in the Act. They made a referral to the Society alleging abuse of their grandson and nephew respectively. Making a referral regarding a child being at risk is not seeking a service. Persons making referrals are expressing concerns about the safety or well- being of a child, and not seeking services for themselves from the Society.

22The Applicants have not sought or received a service for their child, but rather base their complaint on the services the Society provided to a member of the family.

23The Applicants complain that the services of the Society have been inadequate and not responsive in regard to the risk to the Child. For this, the Applicants want the Society held “accountable.” They reported to the Society their concerns about the Child, who happens to be a part of their family. The Applicants have a right to report to the Society, and in fact they have a duty to report to the Society if they have concerns about the safety of the Child. The Act at section72(1) describes the obligation on any person to report to a Society if they have reasonable grounds to suspect abuse or neglect.

24Unless it is a parent of a child who reports to a Society a risk situation to their own child, nothing in the Act requires or permits a Society to give information on its investigation back to a person who reports a child protection concern to a society. Such a person, is not entitled to feedback on their complaint, nor to reasons for a Society’s decisions.

25The Applicants in this situation were fulfilling their obligations to report their concerns to the Society. They took the right actions when they believed the Child was at risk. They had a deep concern for a member of their extended family, namely a grandson and nephew, and reported this to the Society. In this role, the Applicants were not seeking or receiving a service. It is the Child and the Child’s mother who received a child welfare service from the Society. Not being a parent to the Child, and neither Applicant seeking or receiving a service, the Applicants do not have an entitlement to the provisions of s.68.1.

26Both parties added an additional consideration to buttress their position on jurisdiction, as follows.

27The Applicants documented in their Application that they were involved in many meetings with the Society staff and were involved in extensive conversations, usually in the presence of the Child’s mother, about the issues and problems they saw in the Child’s home. This, they argue, entitles them to further feedback from the Society and entitles them to launch a complaint with the Board to seek reasons from the Society as to the decisions it took in this case. The Applicants argue that this allows them to launch a complaint under section 68.1 of the Act.

28The Society, in its letter to the Board dated May 18, 2017, argues from a second perspective that the Board does not have jurisdiction to review this case:

Furthermore, [the Society] does not have the required consents and/or releases which would permit it to respond to the specific allegations made by [KH and TH].

29Regarding the Applicants’ additional consideration, if the Applicants were involved in home visits in the Child’s home with the Child and his mother, and if they had discussions with the Society’s staff about the problems in the Child’s home, those discussions would have been with the explicit or implicit consent of the Child’s mother. If she had not wanted their input, she would have simply asked them to leave, so she could have discussions with the Society’s staff in private.

30Regarding the Society’s additional consideration, if the Board were to determine that it did have jurisdiction to hear this application, the issue of consents may be a practical challenge to the issue of the Society giving the Applicants reasons for its decisions. However, the absence of consents is not an Act-specific disqualifier on the matter of jurisdiction.

31In arriving at the determination on jurisdiction, I have not given any weight to these additional considerations, presented from different perspectives by each of the two parties.

DECISION

32For the reasons above, I find that the Board does not have jurisdiction to review the actions of the Society under this Application. Based on the information obtained during the teleconferences and from the written materials submitted by both parties, I find that the Applicants were not seeking or receiving a service from the Society. In view of the relevant sections of the Act, I have determined that the Board does not have jurisdiction to hear the Applicants’ request for a review of this matter, and therefore the Application is dismissed.

CONFIDENTIALITY ORDER

33Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings, except with an order of the Court or the Board, as appropriate.

John F. Spekkens

John F. Spekkens

Presiding Board Member