LE v. Simcoe Muskoka Child, Youth and Family Services, 2019 CFSRB 37

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LE Applicant

-and-

Simcoe Muskoka Child, Youth and Family Services Respondent

DECISION

Adjudicator: John F. Spekkens Date: July 25, 2019 Citation: 2019 CFSRB 37 Indexed As: LE v Simcoe Muskoka Child, Youth and Family Services (CYFSA s. 120)

APPEARANCES

Angela Marchese, Counsel for LE, Applicant

Karen O’Keefe, Counsel for Simcoe Muskoka Child, Youth and Family Services, Respondent

INTRODUCTION

1The Applicant and the Simcoe Muskoka Child, Youth and Family Services (the “Society”) entered into a Settlement Agreement (the “Agreement”) during a mediation held on April 18, 2019, providing for a full settlement of all issues raised in the Application, dated November 10, 2017 to the Child and Family Services Review Board (the “CFSRB”).

2The Agreement contained three Terms, expressed as a question to the Society, which sought reasons and/or explanations from the Society. The parties agreed to a compliance date of May 17, 2019 and a non-compliance date of May 27, 2019.

3On May 22, 2019, counsel for the Applicant sent a letter to the Society, stating that the Society had not responded by the compliance date of May 17, 2019. This letter suggested that non-compliance had occurred, and requested that a teleconference be set up to deal with the issue of compliance.

4The letter from the Society, responding to the issues raised in the Agreement, was dated May 23, 2019. A subsequent letter from the Society, dated June 17, 2019, acknowledged that the Society’s response was a week late. The Society explained the lateness in its response as a result of the worker’s misunderstanding of the response due date.

5In accordance with the CFSRB’s procedures, when an allegation of non-compliance has been made, the CFSRB held a hearing by teleconference (the “Teleconference”) on July 8, 2019 to determine whether the Society had complied with the Agreement.

6In summary, this case revolves around the planned adoption of three children, the twins L and D, now almost 11 years of age, and the toddler Child E. The Applicant has in the past cared for the twins, but the Child E has never resided with her. The Society is tentatively working on two parallel adoption plans. The first plan is to make an adoption placement of the twins with the Applicant. The second plan is to make an adoption placement of the Child E with the half-sister T of the Child E. A key element of the two adoption plans is that both potential adopting parties would be willing to commit to a measure of openness in the adoptions, so that the twins and the Child E will keep their sibling relationship alive.

DECISION

7After reviewing the materials submitted by the parties, and hearing their arguments, I make two findings. First, I find that the Society did not meet its commitments and obligations as set out in the Agreement with respect to the timing of the Society’s response. However, no evidence was presented that the Applicant was in any way prejudiced by the one-week delay in receiving the Society’s response. At the Teleconference, after the issue of the timing of the response was dealt with, the contents of the response of the Society were reviewed. Second, with respect to the issue of the contents of the response of the Society, I find that the Society did meet its commitments and obligations, as set out in the Agreement, through its letter of May 23, 2019 which was supplemented by more background information being given by the Society during the Teleconference around Terms 2 and 3. The Society committed to following up in writing, and documenting the information that was given orally at the Teleconference. Taking into account the Society’s written response and the additional information given orally, and to be followed-up in writing as committed, I find that the Society met its commitments and obligations as set out in the Agreement and as required by the Child, Youth and Family Services Act, 2017 S.O. 2017, Chapter 14, Schedule 1 (the “Act”). The reasons for these findings follow.

ANALYSIS

The Law

8The CFSRB had determined that the Application was eligible to proceed under section 120(4) 4 and 5 of the Act.

9The Act outlines the Society’s obligations and the mandate of the CFSRB. Section 120 reads as follows:

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

4. Allegations that the society has failed to comply with subsection 15(2).

Subsection 15(2) reads as follows:

Service providers shall ensure that children and young persons ant their parents have an opportunity 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.

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

(7) After reviewing the complaint, the Board may,

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint

10The Act does not require or permit the CFSRB to make a determination as to the clinical merits of a decision made by the Society in the given situation under review by the CFSRB and for which the Society is giving its reasons under this section of the Act. This limitation on the CFSRB mandate is explained to every applicant at mediation, and was re-iterated during the Teleconference.

11In a situation of alleged non-compliance, an applicant’s statement of disagreement or dissatisfaction with the reasons given by the Society does not negate or invalidate the fact that the Society did give reasons as required by the Act.

12The Teleconference then proceeded to review each term of the Agreement.

Terms of the Agreement

Term 1 of the Agreement reads as follows:

Regarding the cultural aspect, if the Child E is adopted by T, then E cannot obtain citizenship with the Métis nation of Ontario, and the benefits that flow therefrom; why is the Society pursuing a plan that would result in the Child E being deprived of these benefits?

13The Applicant is of the understanding that the two plans of adoption, as outlined earlier in these Reasons, would deny the Child of the benefits that may be available from membership in the Métis nation.

14The Society in its response indicated that E will be eligible to obtain Citizenship in the Métis nation of Ontario through two different approaches: self-identification at the age of 16, or through the application by the Child’s guardian at any time prior to the Child attaining the age of 16. The Society attached to its response the statutory declaration form for the potential adoptive parent to submit for the Child E to obtain Citizenship in the Métis Nation of Ontario.

15With regard to the content of its response to Term 1, I find that the Society has met its commitments as made in the Agreement.

Term 2 of the Agreement reads as follows:

Why is the Society opting for the current plan of adoption to separate E from the twins?

16The Society’s response to Term 2 was that the Society decided to pursue the adoption home study that was submitted by T, E’s sibling, as a result of a direction given by the CFSRB in November 2018.

Term 3 of the Agreement reads as follows:

Given the weight of questions 1 and 2, what is the reason for not having all three children adopted by the Applicant, as originally planned?

17The Society’s response to Term 3 was that the original plan brought forward by the Applicant in November 2017 was for E’s twin siblings, and did not include E in the Applicant’s adoption application.

18The substance of Term 2 and Term 3 was determined to be very similar, and the discussion about these two terms was joined in the Teleconference.

19The Society highlighted some of the following facts from the two adoption applications as follows.

20The application by T to adopt the Child E was submitted to the Society in August of 2017, which was approximately three months before the Applicant submitted her application to adopt the twins. The Society subsequently decided to pursue both applications on a parallel basis, rather than wanting to fully complete one application before considering the second application. The Child E has never lived with the twins, and the three children were never raised together. In that context, the Society is not separating E from the twins.

21With regard to the content of its response to Term 2 and Term 3, I find that the Society has met its commitments as made in the Agreement.

ORDER

22I find that the Society met its obligations to provide reasons and explanations in accordance with the Agreement, and as required under the Act. The Society will put in writing a number of the points it made during the discussion on Terms 2 and 3. The allegation of non-compliance is sustained as to the timing of the Society’s response. However, I find that the Applicant did not suffer any prejudice as a result of this one-week delay in the response. With regards to the content of the Society’s written response, supplemented by verbal discussions and explanations, I find that the Society did meet its obligations in accordance with its commitments in the Agreement, and as required by the relevant sections of the Act. Therefore, the allegation on non-compliance is dismissed, and the CFSRB file on this matter is now closed as settled.

CONFIDENTIALITY ORDER

23Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any CFSRB 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 CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.

Dated at Toronto on July 25, 2019.

John F. Spekkens

_____________________________

John F. Spekkens Member