CJ v. Halton Children's Aid Society, 2020 CFSRB 2

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

CJ Applicant

-and-

Halton Children’s Aid Society Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney Date: January 10, 2020 Citation: 2020 CFSRB 2 Indexed As: CJ v Halton Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

CJ, Applicant Self-represented

Halton Children’s Aid Society, Respondent Diane Skrow, Senior Legal Counsel

Introduction

1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).

2The Child and Family Services Review Board (“CFSRB”) found that the Application was eligible to proceed under sections 120(4)4 and 120(4)5 of the Act.

3In its Summary Response, the Respondent argued that the CFSRB does not have jurisdiction to review this Application because the Applicant “was not a person seeking or receiving services”. The Respondent indicated that the Applicant was one of many collaterals interviewed during an investigation involving a child residing at the Applicant’s place of employment.

4The Applicant was directed to make written submissions on the CFSRB’s jurisdiction to hear the Application. She was asked to address the Respondent’s position that she did not seek or receive services from the Respondent.

5Both the Applicant and Respondent provided written submissions.

THE LAW

6Section 120(1) of the Act provides that, if a person has “a complaint in respect of a service sought or received from a society [and the complaint] relates to a matter described in subsection (4), the person who sought or received the service may decide” to make a complaint to either the society or the CFSRB.

7The Act defines “service” as follows:

“service” includes,

a) a service for a child with a developmental or physical disability or the child’s family

b) a mental health service for a child or the child’s family,

c) a service related to residential care for a child,

d) a service for a child who is or may be in need of protection or the child’s family,

e) a service related to adoption for a child, the child’s family or others,

f) counselling for a child or the child’s family

g) a service for a child or the child’s family that is in the nature of support or prevention and that is provided in the community,

h) a service or program for or on behalf of a young person for the purposes of the Youth Criminal Justice Act (Canada) or the Provincial Offences Act, or

i) a prescribed service; (“service”)

8A “parent” in the Act 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, excluding any person who is unavailable or unable to act, as the context requires.

9“Foster care” is defined in the Act as the provision of residential care to a child, by and in the home of a person who,

a) receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and

b) is not the child’s parent or person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing)

BACKGROUND

10The Applicant is a supervisor at an independent licensed service provider specializing in providing foster homes to children and youth. The Respondent investigated a complaint regarding one of the foster home’s children. As part of the investigation, the Applicant was interviewed twice and was subject to a child welfare check by the Respondent.

11In a letter from the Respondent dated February 27, 2019, the Respondent indicated that the Applicant was found to have “verified child protection concerns” as a result of the child welfare check. In addition, the letter indicated that: “staff were all consistent in reporting that they are not trained to deal with FASD children, children with cerebral palsy and have no training in behavioural management”. The Applicant considered that this assertion related to her as well.

12In her submissions, the Applicant maintained that she received services from the Respondent through the investigation and its conclusions. She cited H.L.B. v Chatham-Kent Children’s Services, 2012 CFSRB 4 (see below) in support of her argument.

13The Respondent maintained that the Applicant did not receive a service as she was not the subject of the investigation as was the case in H.L.B. v. Chatham Kent. The Respondent also cited two similar cases in support of their argument: A.G. v. Family and Children’s Services of Frontenac, Lennox and Addington, 2018 CFSRB 13; and M.L. v. Dilico Anishinabek Family Care, 2019 CFSRB 44.

14After reviewing all the documentation before me, I find that the investigation involved a child that was in foster care and that the Applicant is not a parent as defined in paragraph 9 above. As such, I find that the provisions of section 120 (4) 4. (opportunity to be heard) are not applicable to this Application.

15The determinative questions I must address are:

1. Was the Applicant in receipt of services?
2. Was a decision made by the Respondent?
3. Did the decision affect the Applicant’s interests?

Was the Applicant in receipt of services?

16Both parties cite H.L.B. v. Chatham-Kent Children’s Services (CFSA s. 68), 2012 CFSRB 4 (para. 51) as follows:

Looking 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.

17In this case, the Applicant is a supervisor in a facility that provides foster care. The Respondent investigated an allegation of abuse/neglect at the facility. I considered the Applicant’s status in relation to the investigation. While the Applicant was not initially the subject of the investigation, the Respondent’s staff made the Applicant a subject of the investigation by conducting a child welfare check on her. If the Applicant had simply been interviewed as part of an investigation, she would not have been found to be the subject of the investigation and would have been found not to have been in receipt of services. The investigator opened the door to the Applicant being considered a recipient of service as per H.L.B. v. Chatham-Kent Children’s Services above when it engaged in a child welfare check on the Applicant. This differentiated the Applicant’s case from the findings of M.L. v. Dilico Anishinabek Family Care where the Society had not expressed concerns with the care provided by the applicant and where the Society had not provided services to the applicant.

Was a decision made by the Respondent?

18In its letter to the Foster Home Operator dated February 27, 2019, the Respondent clearly made a decision regarding the Applicant and her interests. The letter’s authors concluded that the Applicant had verified child protection concerns against her personally. This decision differentiates the Applicant from the Applicant in A.G. v. Family and Children’s Services of Frontenac, Lennox and Addington where a Society’s investigation of a foster home did not result in findings specifically about the applicant (para 8). In this decision, the CFSRB held that the right to make a complaint to a society under section 119(1) is specifically available to “a person”, and that section 120(1) refers to "the person who sought or received service”.

Did the decision affect the Applicant’s interests?

19I concur with the Applicant in finding that her professional interests as a Social Worker, and her personal interests (impact on her physical and mental health) were affected by the decisions of the Respondent in their letter of February 27, 2019.

SUMMARY

20Given that the Applicant was found to be in receipt of services, I find her Application is eligible for review by the CFSRB in relation to s. 120 (4)5 in that the Society has failed to provide the Applicant with reasons for a decision that affected her interests.

ORDER

21I direct that the Application move forward under s. 120(4)5 of the Act.

NEXT STEPS

22A Case Processing Officer will be in contact with the Applicant and Respondent to schedule a pre-hearing to prepare for a hearing on the merits of the Application as outlined in paragraph 21. Parties will be offered an opportunity to mediate the issues at the pre-hearing.

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 online. 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.