LA v Kawartha Haliburton Children’s Aid Society, 2019 CFSRB 89

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LA

Applicant

-and-

Kawartha Haliburton Children’s Aid Society

Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney

Date: December 13, 2019

Citation: 2019 CFSRB 89

Indexed As: LA v Kawartha Haliburton Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

LA, Applicant

Self-represented

Kawartha-Haliburton Children’s Aid Society, Respondent

Kristy Davidson, Counsel

Introduction

1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).

2The Child and Family Services Review Board (“CFSRB”) found that the Application was eligible to proceed under section 120(4)(5) of the Act.

3In its November 8, 2019 Summary Response, the Respondent asserted that the Application was not eligible for review as the matter was currently before the court.

4The Applicant and Respondent were directed to provide written submissions on the CFSRB’s jurisdiction to hear the Application, including the applicability of the decision of the Ontario Court of Appeal in Children’s Aid Society of Waterloo v. D.D., 2011 ONCA 441 (see below).

5In her submissions, the Respondent argued that the Applicant initially indicated that the subject matter of the Application was before the court. The Respondent believes that it is in compliance with the Act and seeks to have the Application dismissed.

6The Applicant did not address the jurisdictional issue in her submissions, rather, she responded to the issues discussed in the Respondent’s written response to the Application dated November 8, 2019.

the law

7Section 120 of the Act provides that, if a person has “a complaint in respect of a service sought or received from a society [and the complaint] relates to a matter described in subsection (4), the person who sought or received the service may decide” to make a complaint to either the society or the CFSRB.

8Subsection 120 (8) of the Act states that:

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; or b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995.

9The Ontario Court of Appeal ruled in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441, that the mere existence of a child protection proceeding does not automatically bar the CFSRB from reviewing a complaint about the services an individual has received from a children’s aid society. In DD the Court found that complaints about how the children’s aid society had handled the temporary placement of the applicant’s children could proceed before the CFSRB. Those complaints “were separate and different from the substantive issues before the court” (para 35).

ANALYSIS

10For a complaint to be eligible for review under section 120 of the Act, an applicant must be seeking or receiving services or have received services from a society and the complaint must relate to those services. The Applicant is the grandmother of two children. Her complaint deals with concerns arising from the temporary kinship placement of the children in her home.

11There is no disagreement that the Applicant was in receipt of services from the Respondent. I must then reflect on whether the Applicant’s complaint raises separate and distinct issues than those that are before the court.

12While issues related to custody and access related to the Applicant’s grandchildren are before the court or have been decided by the court as per the affidavit of SS, I find that the Applicant has raised several issues related to her interaction with the Respondent which fall outside custody and access issues and for which she has not been provided reasons as per section 120(4)(5). These issues include:

1. not being provided with an explanation as to why the worker was not changed in response to the Applicant’s concerns regarding bias and insensitivity
2. the failure by the Respondent to provide the Applicant with reasons for Respondent’s decisions on the following while the children were in the Applicant’s care: a) allowing the mother to provide her children with food during access visits b) the Applicant’s concerns regarding transportation to access visits c) the impact of scheduling and access visits on the children’s education and daycare experience d) the Respondent’s failure to address concerns with the impact on the children’s behaviour after telephone calls from their mother e) not being provided with reasons as to the Respondent’s conclusion that the children were not having their emotional needs met, and the subsequent decision to move the children to foster care f) not being provided with explanations for the delay in reimbursements for police checks, camp, daycare, and other costs
3. not being provided with information regarding placement of their grandchildren

13These issues relate to the Applicant’s interaction with the Respondent related to her role in the temporary kinship placement. They do not deal with specific access and custody decision that are or were before the court. As such, I find that subsection 120(8)(a) is not a bar to reviewing these aspects of the Applicant’s complaint. The CFSRB has the jurisdiction to address the issues identified above.

order

14The Application will proceed to a hearing on the merits.

NEXT STEPS

15The parties will be contacted by a case processing officer to schedule a pre-hearing to prepare for a hearing on the merits of the Application as it relates to the issues cited in paragraph 12 above. The opportunity to participate in mediation will be offered at the pre-hearing.

confidentiality order

16Pursuant 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.