CF v. Catholic Children’s Aid Society of Hamilton, 2020 CFSRB 47

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

CF

Deborah Wall

Applicant

-and-

Catholic Children’s Aid Society of Hamilton

Family & Children’s Services Niagara

Respondent

DECISION

Adjudicator: Daniel McSweeney Date: May 14, 2020 Citation: 2020 CFSRB 47 Indexed As: CF v Catholic Children’s Aid Society of Hamilton (CYFSA s.120)

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 Application was received on March 17, 2020.

3The Applicant is a friend of the deceased mother of the 5 children (the “Children”) named in the Application. The Applicant was a support to and advocate for the Children’s mother.

4The Applicant raised the following concerns regarding the Children:

• The Respondent refused to proceed with complaints about the care of the Children which put them at risk;
• The Applicant was concerned with the care and supervision of the Children;
• The Applicant was concerned with threats made to her and the Children’s mother by the Respondent;
• The Respondent did not listen to the wishes of the Children;
• The Applicant was concerned with the Children not receiving supports for their disabilities;
• The Applicant was concerned that the children shared one bedroom; and
• The Applicant was concerned with the delay in calling the police after one of the Children ran away.

5In its initial Reply, the Respondent indicated the following:

• The Applicant has not sought or received services from the Society;
• The Applicant was a friend, support, and advocate for the Children’s Mother;
• The Children’s mother is deceased; and
• The Applicant made a number of reports to the Respondent regarding the Children which were followed-up.

6In their reply, the Respondent argued that the Applicant does not have standing to make a complaint to the Board under s. 120 of the Act as she has not sought or received services from the Respondent. The issue of care and custody of the Children is currently before the Superior Court of Justice and therefore the Application cannot be reviewed as the review is excluded under section 120(8) of the Act.

7In a Case Management Direction (CMD) dated April 8, 2020, the parties were directed to make submissions on the CFSRB’s jurisdiction to hear the Application.

8The Applicant submitted that she was the advocate/representative for the mother and children who were receiving services from the Respondent. The Application dealt with the Respondent’s actions and not with the issues that are before the Superior Court of Justice, and therefore are reviewable by the CFSRB.

9The Respondent submitted that the Applicant was not a service recipient. She was a referent. W.M. v. CCAS of Hamilton (February 19, 2019; CA19-0040) concluded that: “Persons making referrals are expressing concerns about the safety or well-being of a child, and not seeking services for themselves from the society”. In addition, such a person: “is not entitled to feedback on their complaint, nor to reasons for a Society’s decisions”.

10The Respondent also argued that the subject of the Application was an issue that is before the Superior Court of Justice which is excluded from CFSRB review.

THE LAW

11Section 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.

12The 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”).

13A “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.

14The right to be heard, as set out in sections 120(4)4 and 15(2) applies to “children and young persons and their parents”. Section 15(2) of the Act states:

Service providers shall ensure that children and young persons and their parents have an opportunity to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.

15Section 120 (8) of the Act states:

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

ANALYSIS

16For 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.

17The Applicant described herself as an advocate/representative of the Children’s mother; however, she did not provide any evidence to support a legal claim to be acting on behalf of the Children or in the interests of their deceased mother in interactions with the Respondent. The Children are not in her custody. As such, I find that the Applicant does not have the lawful custody of the Children and cannot act in the role of “parent”. She is therefore precluded from making a complaint based on section 120(4) (4) of the Act which limits the right to complain to parents and children.

18In this case, I find that the Applicant’s complaints are not about services that she herself has sought or received from the Respondent. Her complaints focus on concerns related to the custody, safety, and care of the Children of her deceased friend; the alleged treatment of her friend by the Respondent; and with the Respondent’s actions (or lack of actions) with respect to the Children. As such, the complaint does not meet the recipient of service test in section 120(1) of the Act.

19I then considered whether referents have a right to make service complaints under the Act. I concur with the reasoning of my colleague in W. M. v. CCAS of Hamilton that referents are not in receipt of services and are therefore ineligible for review by the CFSRB.

20For these reasons, I find that the complaint does not fall under the provisions of section 120(1) of the Act which indicates that a complainant must be in respect of a service sought or received form a society.

21Given that the Application has been disposed of on the basis of section 120 of the Act, I do not need to assess the exclusion under section 120(8) of the Act which deals with review of matters that are within the purview of the Court.

22For these reasons, this Application is ineligible for review by the CFSRB.

ORDER

23The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

24Pursuant to Rules 9.3 and 9.4 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.