MA v. Kunuwanimano Child and Family Services, 2019 CFSRB 54

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MA

Applicant

-and-

Kunuwanimano Child and Family Services

Respondent

-and-

Attawapiskat First Nation

Party

AND BETWEEN:

MD

Applicant

-and-

Kunuwanimano Child and Family Services

Respondent

-and-

Attawapiskat First Nation

Party

DECISION

Adjudicator: Jennifer Scott
Date: September 12, 2019 Citation: 2019 CFSRB 54 Indexed As: MA v Kunuwanimano Child and Family Services and MD v Kunuwanimano Child and Family Services (CYFSA s.109)

WRITTEN SUBMISSIONS

MA, Applicant Self-represented

MD, Applicant Self-represented

Kunuwanimano Child and Family Services, Respondent Self-represented

Introduction

1These two Applications were brought by MD and MA on August 16, 2019 requesting a review pursuant to section 109 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Schedule 1 (the “Act”) of the Respondent’s decision to remove three foster children from their care.

2The Child and Family Services Review Board (“CFSRB”) held separate teleconferences on each Application on August 27 and 29, 2019. During the teleconferences, the Respondent took the position that the CFSRB did not have jurisdiction to hear the Application because the foster children are not in extended society care.

3Written submissions were received from the parties on whether the CFSRB has jurisdiction to hear these Applications. This is the CFSRB’s decision on that question.

background

4FL, EL and NL are siblings. In June 2016, they were placed into foster care. FL and EL were placed with MD. NL was placed in the care of MA.

5In May 2017, the children’s file was transferred from Payukotanyno: James & Hudson Bay Family Services to the Respondent.

6In March and May 2018, court orders for Society Wardship for the children were obtained by the Respondent for a period of six months.

7In late March 2019, Customary Care Agreements were entered into between the Applicants (for their respective child/children), the Respondent and the children’s biological parents. There was a separate Customary Care Agreement for each child.

8On April 4, 2019, the Ontario Court of Justice ordered all current child protection proceedings withdrawn and all current child protection court orders vacated. The Court ordered further that the trial date set for April 2019 be vacated.

9On August 15, 2019, the Respondent sent letters to MD and MA proposing to remove the children from their care.

10On August 16, 2019, these Applications were filed with the CFSRB.

analysis

11The CFSRB, as a creature of statute, derives its jurisdiction entirely from the statutory provisions which govern it. It is well established that modern statutory interpretation requires the provisions to be read having regard to the plain wording of the text, within the context of the overall scheme and purpose of the legislation, Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), at paras. 20-23, 27.

12The relevant provisions of the Act are as follows:

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) …. (emphasis added)

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.

101(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 102, in the child’s best interests….

3. That the child be placed in extended society care until the order is terminated under section 116 or expires under section 123.

116(1) If an application for review of a child’s status is made under section 115, the court may, in the child’s best interests,

(c) order that the child be placed in extended society care until the order is terminated under this section or expires under section 123.

13Section 109(7) of the Act sets out the criteria that must exist in order to bring an application to review the proposed removal of a child in foster care. The child must be in extended society care (formerly known as Crown Wardship) pursuant to a court order and the child must have lived continuously with the foster parent for two years. These criteria must be met at the time the application is filed with the CFSRB.

14There is no information before me that NL, EL and FL have ever been under extended society care court orders. In any event, it is clear that there were no court orders in place at the time the Applications were filed with the CFSRB on August 16, 2019. On April 4, 2019, the court vacated all previous child protection orders. At that time, the children were under Customary Care Agreements.

15Because the children were not under extended society care court orders at the time the Applications were filed, the criteria for undertaking a review have not been met. As such, the CFSRB has no jurisdiction to hear these Applications.

16The Applicants argue that under the Customary Care Agreements, the Respondent agreed that the children could remain in their care until the age of 18. While I appreciate that the Applicants are upset and frustrated over the Respondent’s decision to not follow these Agreements, the CFSRB has no authority to enforce Customary Care Agreements. As an administrative tribunal, the CFSRB’s jurisdiction is limited to what is given to it by statute. There is no provision in the Act giving the CFSRB the authority to review compliance with Customary Care Agreements.

17The Applicants argue further that the Respondent contravened section 101(1)3 of the Act when it kept the children in interim care and custody for a period greater than 12 months. The CFSRB has no authority to review the Respondent’s compliance with the Act in relation interim society care orders.

18The CFSRB has jurisdiction to review society decisions to remove children from foster care if the children are under extended society care court orders. If they are not, the CFSRB cannot review those decisions. Because the children that are the subject of these Applications were not under extended society care court orders at the time the Applications were filed, the CFSRB does not have jurisdiction in this case.

order

19The Applications are dismissed.

confidentiality order

20Pursuant 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.