L.G. v. Windsor-Essex Children’s Aid Society, 2012 CFSRB 52

CHILD AND FAMILY SERVICES REVIEW BOARD

L.G. v. Windsor-Essex Children’s Aid Society

REASONS FOR DECISION

Date: November 13, 2012

Citation: 2012 CFSRB 52

Indexed as: L.G. v. Windsor-Essex Children’s Aid Society (CFSA s.68)

INTRODUCTION

1On May 11, 2012, L.G.(the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Windsor-Essex Children’s Aid Society (the “Society”) pursuant to section 68.1 of the Child and Family Services Act (the “Act”). The application was determined eligible for review under s.68.1(4)5 of the Act on May 25, 2012. The Applicant filed a supplementary application on July 20, 2012, which has been treated as part of the original application.

2A pre-hearing conference was held on August 13, 2012. The Applicant complained that the Society did not provide her with reasons for decisions affecting her interests in relation to her requests for service to help her re-unite with her granddaughter.

3The Society took the position that the Board does not have jurisdiction to hear the application because the Applicant did not seek or receive a service from the Society but rather, was a spokesperson for her daughter. Thus, according to the Society, she is not a person who can complain to the Board under s. 68.1 (4) 5.

4The Applicant’s position is that she sought a service from the Society in wanting the Society to facilitate her contact with her granddaughter who was involved with the Society and that this was separate from any role she played with respect to her daughter, the child’s mother.

5A jurisdiction hearing was held via tele-conference on October 15, 2012. The Board heard the party’s submissions and took into account the written submissions in the file. The Board advised the parties, who did not object, that it would be relying on the documents in the file at the jurisdictional hearing. Both parties had the opportunity to add further information, which the Society did. The Board reserved its decision. The Board dismisses the Society’s motion for the following reasons.

BACKGROUND

6The Applicant is the grandmother of a fifteen year old granddaughter from whom she is estranged. The Society has been involved with the family since at least November of 2011. The Applicant’s daughter is the mother (“the mother”) of the Applicant’s granddaughter.

7The mother was the subject of an investigation by the Society. The conduct of the Applicant was also in question. There was an allegation made against the Applicant that she had tried to kidnap the granddaughter. Following that allegation, according to the Applicant, she was told by the Society that she could not see her granddaughter. This occurred in November of 2011. According to the Applicant, she repeatedly requested that the Society assist her to make contact with the granddaughter to re-establish their relationship. According to the Applicant, the Society agreed to set up a meeting to try and resolve the situation but subsequently told the Applicant that the granddaughter had refused to meet with her. Allegedly, subsequent requests for a meeting with the granddaughter were denied by the Society.

8The Applicant has also been an active advocate for the mother with the Society, raising concerns about the care of the granddaughter in her father’s home.

9The granddaughter was apprehended from her father’s home on May [ ], 2012. The grandmother is not a party in the resultant child welfare court proceedings, she is not seeking to be a caregiver nor is she seeking court granted access to her granddaughter.

10She wants contact with her granddaughter, as facilitated informally through the Society.

11She brought her application to the Board because she submits that she has not been given reasons for the failure to allow or facilitate contact.

The Board’s Jurisdiction to Hear the Application

12This hearing is at the jurisdictional stage and the Board will not examine the merits of the application in terms of whether the Society provided reasons to the Applicant for any decisions or whether the reasons were sufficient to meet the Society’s obligation.

13The Board must decide if it has the authority to hear the Applicant’s complaint. The Society took the position that the Applicant was not seeking or receiving a service from the Society. Under section 68.1 (4) 5 of the Act, a complainant who has sought or received a service has a right to reasons for decisions that affect her interests. The Board must first determine whether the Applicant sought or received a service. If so, the Board will then determine whether the complaint involves an interest of the Applicant, as distinct from the interests of the mother.

14None of the parties asserted that the Applicant was a “parent”. The Board clarified that the application relates only to the right to reasons under s. 68.1 (4) 5 and not the right to be heard as a parent.

15The following legislative provisions are relevant;

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

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

68.1(8)

The Board shall not conduct a review of a complaint under this section if

the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court.

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;

16With respect to the question of seeking or receiving a service, the Board finds that the Applicant sought and received a service from the Society, separate and apart from her advocacy role for the mother.

17The family file was first opened in the mother’s name, then it was changed to the father’s name and subsequently the child protection matter came before the court. The Society argued that although the Applicant was an active spokesperson on behalf of her daughter and her granddaughter she was not seeking services in her own right. The Applicant had met with an ICRP committee on behalf of the mother and had also met with the Director of Services in her role as support person to the mother, her daughter. The Society entered into evidence a letter from the Society dated December [ ], 2011 confirming that the mother gave the Society permission for information to be released to the Applicant concerning the granddaughter during an investigation the Society was conducting. The letter also confirmed a December [ ], 2011 meeting with the Applicant to discuss concerns. The Society argued that it had contacts with the Applicant only as an authorized support person for her daughter and not as an individual who was seeking services for herself. They also submitted previous cases of the Board: J.C. & K.C. v. F&CS of the Waterloo Region (CFSA s.68), 2010 CFSRB 47, and H.V. and T.V. v. F&CS of Leeds and Grenville (CFSA s.68), 2007 CFSRB 29, indicating that a referral from a grandparent to a Society with concerns about the grandchild’s care does not fall under the Board’s jurisdiction.

18The application to the Board is quite lengthy and includes reference to incidents, referrals of concerns and meetings, including the ICRP at which the Applicant was acting as an advocate for the mother. However, the Board has already narrowed the scope of the Application. In its eligibility decision of May 25, 2012 the Board found the complaint eligible only in relation to contact with her granddaughter.

19The eligibility letter states that the application is eligible under s. 68.1 (4) 5 on the issue of :

Has the children’s aid society failed to provide you with reasons for a decision that affects your interests relating to your requests to have the Society facilitate your contact with your granddaughter.

The remainder of your application is not eligible for review because you are not a parent of your granddaughter as defined by the Act and your concerns relate to services sought or received by your daughter and not you.

20The application is clearly about the Applicant’s attempts to have contact with her granddaughter and the narrative portion starts off: “I had a close and loving relationship with my granddaughter until November [ ], 2011”. It details the allegation made against the Applicant that she was trying to kidnap her granddaughter, Society contacts with the Applicant saying she cannot see her granddaughter and requests for different types of contacts and meetings. The supplementary application is also focussed on the Applicant’s requests for contact with the granddaughter, after the apprehension. At the pre-hearing, where issues are defined in preparation for the hearing, the issue was framed as relating to reasons for the Society’s failure to offer services to help the Applicant reunite with her granddaughter.

21The Board agrees with the Society that those parts of the application where the Applicant was acting as advocate in support of the mother’s concerns are not eligible for review by the Board. The Board has already made that determination in the eligibility decision. Flowing from that decision, the Board and the parties are left with the issue surrounding the Applicant’s request that the Society allow and/or facilitate contact between her and the granddaughter. It is in this context that the Board has made its decision that it has jurisdiction.

22There is no dispute that the Applicant requested help from the Society to re-establish contact with her granddaughter, with whom the Society was involved. In the Applicant’s view, the Society’s response to her requests was inadequate. Her complaint is that she was not given reasons for the Society’s decisions not to facilitate or continue facilitating contact with her granddaughter, a service she sought but feels she did not receive.

23The Society was involved with the granddaughter regarding allegations against the mother, involving the Applicant. It is alleged by the Applicant that the Society told the Applicant that she could not see her granddaughter. The Society admitted that the Applicant sought to make contact with her granddaughter, through the Society. The Society further admitted that following the Applicant’s request for contact, they spoke to the granddaughter who did not want to make contact with the Applicant.

24The Society was involved with the family under Part III of the Act, the Child Protection section of the Act. There was an active investigation and the file was open at the “intake” stage initially and then later, as an ongoing protection file. This comes within the definition of child welfare service, which is a “service” under s. 3(1) of the Act [S.M. v. Society (CFSA s.68), 2010 CFSRB 43]. The Society was conducting investigations and was actively involved with the family. The Applicant’s request for service was in the context of the overall services being offered to the family by the Society. Kin are a recognized part of the family and the Society has obligations to kin under the Act, when looking at the best interests and placement of children [; s. 37 (3) 6; s. 51 (3.1)]

25The Society’s obligation in section 68.1 (4) 5 is not limited by the language of the statute to “parents”. If that were the case, the obligation would contain specific limits like the right to be heard in s. 68.1 (4) 4 which applies only to parents and children. Similarly, there is nothing in the Act that prescribes or limits which family members can be part of receiving service, including a child welfare service.

26The Applicant’s complaint concerns a child welfare service which she sought to help her and her granddaughter to rebuild the former relationship which they had shared. The Society did take steps following the request for service: they spoke to the granddaughter to see if she wanted contact with the Applicant. Based on the Society’s own admission, the Society actually provided a service to the Applicant as part of their child welfare involvement with the family. The Board is satisfied that the Applicant sought and received a service from the Society.

27The Application is about an alleged lack of reasons for the Society’s decisions relating to the Applicant’s request for help facilitating contact with her granddaughter. Implicit in the Society’s position that the Applicant is acting on behalf of the mother, is that she has no interest affected by the Society’s decisions. The Board finds that the Applicant does have an interest affected by the alleged lack of reasons for decisions.

28The interest of the Applicant, affected by the decisions, is in her family bond and individual relationship with her granddaughter. She believed that her granddaughter needed her and that their relationship was important for the child’s wellbeing. The Applicant was concerned that this family bond needed to be repaired and the Society was doing nothing to facilitate this relationship.

29The Board has recognized the importance of the bond that grandparents have with their grandchildren (for example, in CA10-0245). This recognition is in part due to the special importance of kin in the Act when considering best interests and placement [s. 37 (3) 6; s. 51 (3.1)]. The Applicant had a prior relationship to and bond with her granddaughter that she felt needed to be fostered. The Society did not question the importance or validity of this bond. The Society does submit that because the Applicant is not seeking court ordered access or to be a caregiver, that her situation is different from other kin whose applications have been heard by the Board. While the situation is different, it is comparable in that the relevant question is: what interest is at stake? The answer in both types of cases is the same: that of the family bond and relationship.

30In its July [ ] 2012 correspondence the Society notes that it has “spoken to the Applicant on many occasions in the hopes of addressing her complaints recognizing that she is a concerned grandmother”. While not all of the contacts relate to the Applicant’s interests but rather, some are on behalf of the mother, it remains that the Applicant did assert her own interest in continued contact with her granddaughter. The Society chose to facilitate that contact at some point, but not further and allegedly did not provide reasons for its decisions.

31Since the complaint is about an interest of the Applicant that is affected by the Society’s decisions and since the Applicant also sought and received a service from the Society, she can bring an application to this Board under s. 68.1 (4) 5 relating to the provision of reasons.

32As indicated above, the Board is not concerned in this application with the issues raised by the Applicant on behalf of the mother with respect to the care of the child, the Applicant’s granddaughter.

33The Board will also not deal with any subject matter that is before the Court. However, much of the Applicant’s complaint deals with events that occurred prior to the Child’s apprehension and the child welfare proceedings. Further, the Court of Appeal in Children’s Aid Society of Waterloo v. D.D. 2011 ONCA 441 (leave to appeal to the S.C.C. denied) confirmed that simply because an applicant can bring an issue to the court, does not meant that it is before the Court and thus insulated from review by the Board. The Applicant is not seeking court ordered access to the granddaughter. The granddaughter has a lawyer through the Office of the Children’s lawyer. But the Board is not concerned with communications as between the child and her counsel. The Board is concerned, when it examines the merits of this case, with the communications between the Applicant and the Society. The explanations may very well involve what is happening at court at any given time, but that does not mean the issue in this case is before the Court. The Applicant is not a party to the court proceedings and there is no evidence that the question of whether the Society provided reasons to the Applicant for not pursuing the facilitation of contact with the granddaughter has been put to the Court by a party.

34The Board has jurisdiction to hear the application and will proceed to hear the merits. The issue for the Board will be whether the Society provided the Applicant with reasons for its decisions relating to the Applicant’s requests for contact/facilitation of contact with her granddaughter.

35The Board dismisses the Society’s motion and will proceed to hear the application.

CONFIDENTIALITY ORDER

36Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.