LK v. Kawartha Haliburton Children’s Aid Society, 2020 CFSRB 71

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LK

Applicant

-and-

Kawartha Haliburton Children’s Aid Society

Respondent

DECISION

Adjudicator: Daniel McSweeney Date: July 13, 2020 Citation: 2020 CFSRB 71 Indexed As: LK v Kawartha Haliburton Children’s Aid Society (CYFSA s.120)

INTRODUCTION/BACKGROUND

1This is an Application filed under section 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 affected her interests.

3The Applicant is the maternal grandmother of AL (the “Child”). The Application outlined concerns with the safety and well-being of the Child at the hands of his mother. The Applicant alleged that the Child’s mother is mentally ill and has run away with the Child placing him at imminent risk.

4The Respondent was directed to make submissions related to whether the Applicant was in receipt of services. The Applicant was provided 10 days after receipt of the Respondent’s submissions to make submissions. The Applicant did not provide additional submissions.

5The Respondent indicated that the CFSRB did not have jurisdiction to review the complaint as the Applicant is not a service recipient as per Section 281 [sic] of the Act. The Applicant completed a criminal and child welfare record check; however, was not part of a kinship assessment or assessed as an alternate care provider. The Child remains in the care of his mother. In summary, the Respondent viewed the Applicant as a referent and not a service recipient.

THE LAW

6Section 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.

7Section 2(1) of the 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”)

8A “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.

9H.L.B. v. Chatham-Kent Children’s Services (CFSA s. 68), 2012 CFSRB 4 (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.

ANALYSIS

10I considered the Applicant’s concerns as well as the documents she provided in support of the complaint. I also considered the Respondent’s submissions.

11While the Applicant may have valid concerns related to the welfare of her grandson, I concur with the Respondent that the Applicant is not a service recipient as per section 281 of the Act, and therefore the CFSRB cannot review her complaint.

12The Applicant did not provide submissions or evidence from a Court to attest that she had legal custody of the Child or could act in the role of parent. I note from the Applicant’s complaint that she felt that the Child was: “released into our primary care”; however, no argument was presented by the Applicant to support this. On the contrary, the Respondent has argued that the Applicant was not part of a kinship assessment and was not assessed as an alternate care provider for the Child. The Child remains in the custody of his mother.

13The documents presented by the Applicant indicate that she was in contact with the child protection worker; however, the interaction was in the form of information sharing and reporting on the Child and his mother, rather than receiving any prescribed services from the Respondent such as supervision of access visits, parenting education, kinship support etc.

14I find that the interaction between the Applicant and Respondent could have benefitted from a formal clarification on the roles and responsibilities of referents in relation to child protection matters. I find the lack of clarity has contributed to expectations among the Applicant that cannot be fulfilled by the Respondent as well as the CFSRB.

SUMMARY

15As noted above, I find that the CFSRB does not have the jurisdiction to address issues included in the complaint given that the Applicant has not received service from the Applicant. She does not have status as a parent in relation to the Child. The Respondent is a referent who is the Child’s grandmother. The CFSRB does have jurisdiction to review complaints of grandparents who are not service recipients under the Act.

ORDER

16The Application is dismissed.

CONFIDENTIALITY ORDER

17Pursuant 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.