CHILD AND FAMILY SERVICES REVIEW BOARD
J.C & K.C. v. Family & Children’s Services of the Waterloo Region
REASONS FOR DECISION
Date: November 8, 2010
Citation: 2010 CFSRB 47
Indexed as: J.C. & K.C. v. F&CS of the Waterloo Region (CFSA s.68)
INTRODUCTION
1On August 3, 2010, J.C. and K.C. (the “Applicants”) filed an application with the Child and Family Services Review Board (the “Board”) against the Family and Children’s Services of the Waterloo Region incorporated as the Children’s Aid Society of the Regional Municipality of Waterloo (the “Society”) pursuant to sections 68 and 68.1 of the Child and Family Services Act (the “Act”). The application was found to be eligible for review on August 6, 2010 under section 68.1(4)5 of the Act, relating to the provision of reasons.
2A pre-hearing conference was held on September 7, 2010. The Applicants stated that their two complaints were as follows:
that the Society file and record contain information about the Applicants that is incorrect and malicious and the Applicants wish to have this misinformation corrected, and
that the Society did not respond appropriately to information provided by the Applicants and their grandchildren were in need of protection and the Applicants’ concerns in this regard were not heard and the Applicants were not provided with an explanation.
3In response, the Society argued that the Board does not have jurisdiction to hear the Application since the Society does not have a file on the Applicants, nor has the Society provided any service to the Applicants. Specifically the Society argued that the complaint contains no matter within the purview of the Board as authorized by section 68 and 68.1 of the Act.
4A hearing into this matter was held on October 28, 2010. The Applicants were self-represented. The Society was represented by counsel. At the outset of the hearing, counsel for the Society presented a motion on the Board’s jurisdiction to hear the Application. For the reasons that follow, the Board granted the motion and did not proceed to hear the Application.
BACKGROUND
5[The Applicants] are the grandparents of 10-year old A.W. and 8-year old K.W. (the “Children”). D.W. is the Applicants’ daughter and the biological mother of the Children. D.W.’s current partner, S.G., is not the biological father of the Children.
6On or about May […], 2006 the Applicant, J.C. telephoned the Society to express her concerns about the care and safety of the Children. The Applicant, K.C. also made one telephone call to the Society to add further details about his concerns for the care and safety of the Children.
7The Applicants provided a home for the Children between April 2007 and December 2007. D.W. lived in her parents’ home on an irregular basis during this same time period. No evidence was tendered that indicated this living arrangement was anything more than a mutually agreed upon arrangement.
8The Applicants also indicated that they have been shut out of their grandchildren’s lives by their daughter. They attempted to have the Court order access visits for the grandchildren, but D.W. would not consent to these visits.
9The Applicants live very close to their daughter and continue to observe what they consider to be both physical and sexual abuse of the Children. Their fears for the safety of the Children led them to file their application with the Board in August, 2010.
RELEVANT LEGISLATION
10The Board has considered the following legislative provisions in arriving at its decision:
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:
(1) Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68(1) as required by subsection 68(2).
(2) Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.
(3) Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.
(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.
3 (1)
In this Act,
“service” means,
(a) a child development service;
(b) 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;
ANALYSIS
11With respect to the complaint about inaccurate file information, although listed as a concern of the Applicants’ in the pre-hearing report, the Board will not address this issue as the Application was not found eligible on this ground.
12With respect the issue regarding the grandparents’ concerns, this issue, as re-framed in the context of the eligible ground for review (the provision of reasons) relates to whether, after expressing their concerns that their grandchildren were in need of protection, the Applicants were provided with reasons for Society decisions that affected their interests.
13The 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 in subsection 68.1(1) of the Act.
14Under 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.
15The 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.
16The Applicants have never had custody of the Children. They are the grandparents of the Children. 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 grandchildren; and a referral is not, by definition in section 3(1)(c) of the Act, seeking a service. Persons making referrals are seeking services for the child or children, not for themselves.
17In 2009, in Board file CA09-0094 (L. S. v. Hastings Children’s Aid Society), the Board issued reasons for a jurisdiction decision involving a grandparent’s complaints against a society. In this decision (at paragraph 24) the Board noted the special relationship between grandparents and their grandchildren as follows:
The Board must duly note that grandparents and in particular grandmothers, while they are not the “parents”, often have very special interests in the care and well-being of their grandchildren. They are much more than merely third party referrals when they inform a society of a child protection concern for their own grandchildren. The relationships between grandparents and their grandchildren are unique to each family. So too are the complaints brought before the Board by grandparents. Each one must be assessed independently. The factors that lead to a jurisdiction ruling in one case may not necessarily be applicable to other cases that follow, even if the complaint appears to be of a similar nature.
18Duly noting the previous paragraph, in the current matter, the Board weighed the testimony and legal arguments presented in determining jurisdiction. It did not rely solely on the decision on jurisdiction in Board file CA07-0061, provided by the Society. While the Board understands the Applicants’ concerns in the current matter, in the circumstances of this case, the Board did not find that the Applicants are persons who sought or received services from the Society. Having thus determined that the first jurisdictional requirement – that the Applicants were not persons who sought or received a service – has not been met, there is no need for the Board to make a determination on the second and third requirements.
DECISION
19The Board grants the motion of the Society. The Board does not have jurisdiction and will not proceed to hear the Application.
Richard Linley Presiding Member
Gail Gonda Panel Member
John Gates Panel Member
Dated at Toronto, Ontario on this 8th day of November, 2010.