A.R. v. Windsor-Essex CAS, 2010 CFSRB 12

CHILD AND FAMILY SERVICES REVIEW BOARD

A.R.

v.

Windsor-Essex CAS

REASONS FOR DECISION

WRITTEN REVIEW

Date: February 26, 2010

Citation: 2010 CFSRB 12

Indexed as: A.R. v. Windsor-Essex CAS (CFSA s.68)

INTRODUCTION

1A.R. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on November 27, 2009 pursuant to subsection 68.1(4) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”) against the Windsor-Essex Children’s Aid Society (the “Society”).

2The application to the Board was found eligible under s. 68.1 (4) 4 and 5 on December 1, 2009. The Applicant alleges that the Society has failed to provide him with an opportunity to be heard under s. 68.1(4) 4 or with reasons for decisions that affect his interests, relating to a youth, K. who lived with the Applicant and was a crown ward of the Society, under s. 68.1(5) 5.

3The Society takes the position that the Applicant is not a parent within the meaning of the Act and as such, has no right to be heard. The Applicant takes the position that he is a parent within the meaning of the Act and entitled to be heard. At a pre hearing teleconference held on January 15, 2010, the Board determined, with the consent of the parties, that it would receive written submissions on this issue alone relating to s. 68.1 (4) 4 of the Act and that the s. 68.1 (4) 5 ground of the application would be deferred.

4The parties were asked to file submissions on the issue of whether or not the Applicant was a parent within the meaning of the Act with reference to s. 3(2) and 37 (1) (d) of the Act.

5The Board has received and reviewed the submissions of both parties including the reply submissions of both parties. The Board is satisfied that the parties in having at least 2 weeks to file their submissions and one week for reply from the date of receipt had sufficient time to make their respective arguments. The submissions from both parties are detailed and fulsome.

6The issue before the Board is whether or not the Applicant is a “parent” within the meaning of the Act. If the Applicant is not a parent, his s. 68.1(4) 4 complaint is not eligible for review.

7The relevant sections of the Act are as follows:

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).

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(2) In this Act, a reference to a child’s parent shall be deemed to be a reference to,

(a) both parents, where both have custody of the child;

(b) one parent, where that parent has lawful custody of the child or the other parent is unavailable or unable to act as the context requires; or

(c) another individual, where that individual has lawful custody of the child,

except where this Act provides otherwise.

37 (1) In this Part,

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

(c) the individual having lawful custody of the child,

(d) an individual who, during the twelve months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of his or her family, or has acknowledged parentage of the child and provided for the child’s support.

8For the reasons that follow, the Board has decided that the Applicant is not a parent within the meaning of the Act and that his s. 68.1 (4) 4 complaint is not eligible for review by the Board.

BACKGROUND

9The youth, K, was made a crown ward following a protection application commenced in 2000. The Society became involved with K.’s family sometime prior to 2000. K. was placed in foster care. The Applicant got to know K. through K.’s involvement in cadets and drove him to cadets in 2006. K. had problems in his foster home and the Applicant offered to take K. into his home where he lived with his mother. K. moved into the Applicant’s home on March […], 2007 when he was seventeen. The Applicant received payment for room and board from the Society. At the time, the youth was put on “independent living”, but retained his status as a crown ward. The Applicant made several inquires for support and services from the Society on his own behalf and on behalf of K. The Applicant took on duties such as arranging for K.’s education, medical appointments, counselling, learning opportunities and vacations. He took K. fishing and helped him learn to drive. He furnished K.’s room. He set house rules for K. who ate with the Applicant and his mother. To the Applicant, K. was part of his family: his son. K. wrote cards to the Applicant calling him “dad”.

ANALYSIS

10The Society’s position is that the Applicant did not have lawful custody of K., that he did not demonstrate a settled intention to treat the Applicant as part of his family within the relevant time frame set out in the Act or alternatively, that he was a de facto “foster parent” and thus, in either instance excluded from the definition of parent under the Act.

11The Applicant’s position is that he had lawful custody of K., that he demonstrated a “settled intention” to treat K. as part of his family and that the relevant time frame is different from that suggested by the Society.

12The Board finds that the Applicant did not have lawful custody of K. The Board finds further that while the Applicant may have demonstrated a “settled intention” to treat K. as his child, he did not do so within the relevant time frame set out in the Act. As such, he did not meet the definition of “parent” in the Act and cannot complain under s. 68.1 (4) 4 which references parental rights to be heard under s. 2 (2) (a) of the Act.

13The Act contains an overall definition of parent in s. 3 (2). This definition includes an individual other than a “parent” where that person has lawful custody of the child. This definition is subject to exceptions in the Act. Section 37 (1) of the Act applies to children and youth who are the subject of child protection services under Part III of the Act. This includes children who are ultimately made crown wards as a result of child protection proceedings. The s. 37 (1) definition includes “the individual having lawful custody of the child”. In addition, it adds other persons as “parents”. Under the expanded definition of parent in section 37 (1) (d), an “individual who, during the twelve months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of his or her family” is considered a parent.

14First, the Board will address the issue of “lawful” custody. The Board accepts that the person with lawful custody is the person with a legal entitlement to custody by right or by court order. In this case, the Society, through its order of crown wardship (which was not disputed) had legal or lawful custody of K. Under s. 63 (1) of the Act, once a child is made a crown ward, the crown through the society, has the rights and responsibilities of a parent for the purpose of the child’s care, custody and control. The Society was the only party entitled to make decisions relating to the “bundle” of custodial rights for K., subject only to his rights as an older youth. This is so despite the day to day or practical approach to decision making for K. In practice, the Society delegated responsibilities to the Applicant or acquiesced to the steps taken by the Applicant to the extent those steps overlapped with legal parental authority. This did not vest the Applicant with legal custody. In order to obtain legal custody, the Applicant would have needed a court order.

15Second, the Board will look at the question of the relevant timing for the “settled intention” referred to in s. 37 (1) (d). The Society provided case law to the effect that the relevant twelve month period was that period prior to the event by which the Society became involved in the child’s family under Part III of the Act. The Society references its protection application in 2000 as the triggering event involving K. The Applicant submitted that the relevant twelve month period was the period preceding his request for Society help or “intervention” in dealing with K. in July 2008.

16The Board is bound by decisions of the courts. This means the Board must follow the decision of the court in D.J. v. Children’s Aid Society of Ottawa, [2003] O.J. No. 3076 (Ontario Superior Court of Justice, Family Court). In that case, the child was placed as a foster child and subsequently placed with the family on adoption probation for eleven months, prior to removal. The family sought to bring a status review application and to be recognized as parents by way of “settled intention” under s. 37 (1) (d). The court held that the relevant “intervention” which triggered the twelve month period was not a particular court application such as a status review application or child protection proceeding, but rather “the event by which the society became involved in the child’s family under the authority of Part III” of the Act. This event was described as the “intervention that gave rise to the initial protection application”. In D.J. that event occurred prior to both the foster and adoption placements. Under the scheme of the Act, this could include an apprehension of a child or an investigation.

17In this Application, the Society initially became involved with K.’s family some time prior to the protection application commenced in 2000. This is not disputed. Although the initiating event or its timing has not been described, the matter proceeded before the courts in 2000 and K. was subsequently made a crown ward. The Society suggests that in this case, the initiating event was the child protection application commenced in 2000. Whether the originating event occurred prior to the child protection application is, in this case, of no relevance. The Applicant did not involve K. in his family life until he started driving him to cadet training in December of 2006. It is evident from the submissions that the Applicant did not know K. in 2000. K. moved in with the Applicant in March of 2007. The Board finds that the relevant twelve-month period was in 1999/2000, some six years before the Applicant involved K. in his family. The Applicant did not and could not demonstrate a “settled intention” to treat K. as a child of his family during a time period when he did not know K.

18While the Applicant may have demonstrated a settled intention, it did not pertain to the 12 months preceding the Society’s initial intervention in K.’s life under the authority of Part III of the Act.

CONCLUSION

19The Applicant’s application under s. 68.1 (4) 4 is not eligible for review by the Board. As agreed in the pre-hearing teleconference, the complaint under s. 68.1 (4) 5 of the Act will proceed in the usual course.

Sheena Scott

Board Member