DW v. Family & Children’s Services Niagara, 2020 CFSRB 18

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

DW

Applicant

-and-

Family & Children’s Services Niagara

Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney

Date: March 3, 2020

Citation: 2020 CFSRB 18

Indexed As: DW v Family & Children’s Services Niagara (CYFSA s.120)

WRITTEN SUBMISSIONS

DW, Applicant

Self-represented

Family & Children’s Services Niagara, Respondent

Maggie Scull, Counsel

INTRODUCTION/BACKGROUND

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 Applicant was found eligible to proceed under s. 120(4)5 of the Act: The Society is alleged to have failed to provide the Applicant with reasons for a decision that affects her interests.

3The Applicant is the paternal grandmother of W (the “Child”). The Application outlined the following:

• Concerns regarding alleged physical abuse of the Child by her mother’s new boyfriend
• Concerns that the Applicant’s explanation for not reporting suspected abuse to CAS was not heard by the worker
• Concerns regarding the Society’s failure to broker access to the Child, including on Christmas and Family Day
• Concerns regarding possible mediation given that the Applicant was threatened by the Child’s mother never to see the Child again, and the maternal grandmother deleted the Applicant from Messenger
• Concerns that the Applicant’s attempts to communicate with the Respondent were not followed-up
• Historical concerns regarding the apprehension of the Applicant’s children in the past; requirement for supervised access; forced urine testing; failure to provide ongoing support for her parenting and family; failure to explore placement of the children with the Applicant’s parents; being told to hand over parental rights by Respondent staff; and how the Respondent dealt with evidence from the Applicant’s psychiatrist
• Concerns with the long-term impact of the Society’s treatment of her family on her children

4The Respondent indicated that the CFSRB did not have jurisdiction to review issues regarding access as these were issues that were before the Court or were decided by the Court (section 120.8(a)). The Applicant was not a parent and therefore did not receive services from the Respondent. In the event that the complaint is deemed eligible, the Respondent argued that it has complied with its obligations towards the Applicant under section 120(4)(5). In addition, the Respondent indicated that the Applicant’s child protection concerns have been investigated.

THE LAW

5Section 120 (1) 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.

6The Act defines “service” as follows:

“service” includes,

a) a service for a child with a developmental or physical disability or the child’s family

b) a mental health service for a child or the child’s family,

c) a service related to residential care for a child,

d) a service for a child who is or may be in need of protection or the child’s family,

e) a service related to adoption for a child, the child’s family or others,

f) counselling for a child or the child’s family

g) a service for a child or the child’s family that is in the nature of support or prevention and that is provided in the community,

h) a service or program for or on behalf of a young person for the purposes of the Youth Criminal Justice Act (Canada) or the Provincial Offences Act, or

i) a prescribed service; (“service”)

7A “parent” in the Act is defined as:

a) the person who has lawful custody of the child; or

b) if more than one person has lawful custody of the child, all of the persons who have lawful custody of the child, excluding any person who is unavailable or unable to act, as the context requires.

8H.L.B. v. Chatham-Kent Children’s Services (CFSA s. 68), 2012 CFSRB 4 (Can LII 2012-02-01) (para. 51) comments on the concept of “receipt of service” as follows:

Looking at the statute, the Society’s obligation to provide reasons in section 68.1 (4) 5 is not confined to “parents”. If that were the case, the obligation would be associated with section 2(2) (a) of the Act, like the right to be heard. The right to reasons for decisions that affect one’s interests is broad and recognizes that there may be persons other than parents who are involved with children under the Act and whose lives may be impacted by Society decisions.

9Section 120 (8)(a) 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

10The 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

11I considered the Applicant’s concerns related to the alleged abuse of the Child. In this case, the Society has legal custody of the Child as she is in extended care. Despite the fact that the Applicant reported her concerns regarding suspected concerns of abuse to the Respondent, as a grandmother, I find that she is not entitled to reasons from the Respondent regarding the abuse allegations. She is no different than any referent and is not entitled to reasons regarding a society’s decisions regarding suspected abuse.

12I considered the Respondent’s argument that the CFSRB does not have jurisdiction to review the complaint as its contents are matters that are before the Court or have been decided by the Court. The Applicant has made two motions before the Court dealing with access to the Child. The Applicant has also asked the Court for temporary care of the Child. As such, the CFSRB cannot deal with any access or temporary care issues which were exclusively within the jurisdiction of the court as per Section 120(8)(a) of the Act outlined in paragraph 4 (above).

13I considered whether the CFSRB has jurisdiction to review aspects of the complaint that are separate and different from issues before the Court Based as per Children’s Aid Society of Waterloo v. DD. I considered the discretionary role that the Respondent has in relation to access visits. The Respondent’s discretionary role concerning the facilitation of access was confirmed by correspondence sent to the Applicant by the OCL’s lawyer. I concur with the OCL that the Respondent has discretion over if, when, and how access to the Child is implemented.

14In addition, based on H.L.B. v. Chatham-Kent Children’s Services, I find that the Applicant is entitled to reasons as a grandparent who has sought access to the Child who is in the extended care of the Respondent.

15After having reviewed the documentation provided by the Respondent, I find that, for the most part, the Respondent has provided the Applicant with sufficient reasons for its decision-making around access to the Child. For example, the letter of January 28, 2020, explained that issues of distance; and facilitation of parental access were the Respondent’s primary concerns related to access. In addition, the Respondent confirmed that staff spoke with the Applicant twice (in-person, by message) to explain the Respondent’s position. The Respondent indicated that it would pass along the Applicant’s requests concerning access to the maternal grandmother. In addition, I note that whether the Child be transported a considerable distance for access is a matter before the Court.

16I find, however, that the Applicant was not provided with an explanation as to why her Christmas access request was denied. This request pre-dated the explanation letter of January 28, 2020. As such, the Applicant is entitled to an explanation regarding the Christmas visit. I noted that Family Day was after the January 28, 2020 letter and therefore the Applicant had received an explanation by Family Day.

17With regard to access, I find the Respondent provided the Applicant with an adequate explanation for its decision-making although the Applicant may disagree with the Respondent’s decision in this regard.

18It is unclear from the Application and Summary Reply if any issues of access to the other male child “M” were addressed by the Courts; if the Applicant’s complaint covered “M” as well; or if the Applicant is the grandparent of “M”. This issue may be clarified at the pre-hearing teleconference.

19I considered the historical concerns that the Applicant raised in the complaint. The passage of time is not a bar to the right of the Applicant to submit a complaint. As such, I find that the CFSRB has the jurisdiction to review the following historical aspects of the Applicant’s complaint:

• Any concerns with the apprehension of her sons
• Concerns with the requirement for supervised access
• Concerns related to how the Respondent addressed alleged psychiatric concerns for the Applicant, the evidence provided by the psychiatrist, and the clean urine tests
• Concerns with the lack of supports provided by the Respondent to the Applicant and her family
• Concerns of how she was treated (told to give up her parental rights) by Respondent staff
• Concerns that her parents were not considered kin placements for her children
• Concerns related to the long-term impact of the Respondent’s treatment on her children

SUMMARY

20As noted above, I find that the CFSRB does not have the jurisdiction to address issues of access that are or were before the Courts. The CFSRB does have jurisdiction to address the historical complaints in paragraph 19; as well as to an explanation for the denial of access to the Child over Christmas as outlined in paragraph 16 above.

21The CFSRB does not have jurisdiction to address the Respondent’s treatment of any alleged child protection concerns reported by the Applicant.

ORDER

22The Application is dismissed in part.

NEXT STEPS

23A Case Processing Officer will be in contact with the Applicant and Respondent to schedule a pre-hearing on the merits of the Application as outlined in paragraph 20 above. The parties will be offered an opportunity to mediate the issues at the pre-hearing.

CONFIDENTIALITY ORDER

24Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings, except with an order of the Court or the Board, as appropriate.