DH v Halton Children’s Aid Society, 2024 CFSRB 133

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

DH

Applicant

-and-

Halton Children’s Aid Society

Respondent

INTERIM DECISION

Adjudicator: Caroline Sand

Date: November 19, 2024

Citation: 2024 CFSRB 133

Indexed As: DH v Halton Children’s Aid Society (CYFSA s.109)

Introduction

1This is an Application filed under section 109 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).

BACKGROUND

2The Respondent provided written notice to the Applicant that the child TT, who had been in her kinship care for over two years, would be removed from her care on October 30, 2024, pursuant to sections109(7) and s.109(17) of the Act.

3The Applicant filed the present Application on November 5, 2024, within the 10 days provided in section 109(8) of the Act.

4At the time the Application was filed, it was within the CFSRB’s jurisdiction to review.

5The Respondent has been seeking a termination of the child’s extended society care order from the Court since March 2023.

6Two days after the Applicant filed the present Application, on November 7, 2024, the Respondent brought an urgent motion before the Ontario Court of Justice, seeking to remove the child from the Applicant and place him in the care of his father.

7The Court made an interim without prejudice order, removing the child from extended society care and placing him with his father under a temporary supervision order. The return of the motion is scheduled for December 3, 2024.

ISSUE: Does the CFSRB have jurisdiction to review this Application?

LAW

Section 109 of the Act provides:

Notice of proposed removal

109(7) If a child is in extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c) and has lived continuously with a foster parent for two years and a society proposes to remove the child from the foster parent under subsection (6), the society shall,

(a) give the foster parent at least 10 days notice in writing of the proposed removal and of the foster parent’s right to apply for a review under subsection (8).

Application for review

109(8) A foster parent who receives a notice under clause (7) (a) may, within 10 days after receiving the notice, apply to the Board in accordance with the regulations for a review of the proposed removal.

Board hearing

109(9) Upon receipt of an application by a foster parent for a review of a proposed removal, the Board shall hold a hearing under this section.

Where child at risk

109(17) A society may remove the child from the foster home before the expiry of the time for applying for a review under subsection (8) or at any time after the application for a review is made if, in the opinion of a local director, there is a risk that the child is likely to suffer harm during the time necessary for a review by the Board.

ANALYSIS

8As set out in paragraph [4] above, when the Application was filed on November 5, 2024, it met the criteria to be eligible for review by the CFSRB.

9On November 7, 2024, the child was no longer in extended society care on an interim without prejudice basis by order of the Court. A plain reading of section109(7) provides that the child must be in extended society care to be eligible for review at the CFSRB. The temporary without prejudice order of the Court rendered this Application ineligible for review, at least temporarily.

10On October 2, 2024, the Applicant of the present Application was added as a party to the pending status review application before the Court. As such, the Applicant is a party to the proceeding currently before the Court, including the urgent motion.

11The parties’ submissions on the question of the CFSRB’s jurisdiction reference subsection 120(8)(a) of the Act, which sets out that the Board does not have jurisdiction to hear complaints under that section if the subject of the complaint is an issue that has been decided by the court or is before the court. There is no corresponding subsection in section 109 of the Act that precludes the CFSRB from reviewing an Application if it is before the court.

12Applying the test set out in CAS v. Waterloo v. D.D. 2011 ONCA 441, the Applicant attempted to distinguish the matter before the Court from the Application before the CFSRB, to show they are separate and different issues. The Applicant submitted that the matter before the Court is looking at the long and short-term placement of the child, which is different from the issue before the CFSRB.

13The urgent motion before the Court addresses substantively the same issue as the Application before the CFSRB. The materials filed for the urgent motion set out why the Respondent wants to remove the child from the Applicant’s care, and what the Respondent views as a risk of harm to the child if he remains in the Applicant’s care.

14While the commencement or continuation of a child protection proceeding does not automatically bar the jurisdiction of the CFSRB, the Court’s interim without prejudice order addresses the same issues that are before the CFSRB.

15If the CFSRB were to proceed with a review of the Application simultaneously, it could potentially come to a different determination from the Court. It is not within the CFSRB’s statutory powers to replace a Court’s decision.

16Once the Court renders its decision on the motion to be heard on December 3, 2024, the child might be returned to extended society care, depending on the Court’s determination, and if so, the matter may return to the CFSRB for review.

ORDER

17The Application is stayed pending the return of the urgent motion before the Court.

18The Applicant is to advise the CFSRB following the return of the motion on December 3, 2024, as to the outcome of the Court proceeding.

confidentiality order

19Pursuant 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.