MV v Catholic Children’s Aid Society of Hamilton, 2020 CFSRB 85

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MV Applicant

-and-

Catholic Children’s Aid Society of Hamilton Respondent

DECISION

Adjudicator: Daniel McSweeney Date: September 14, 2020 Citation: 2020 CFSRB 85 Indexed As: MV v Catholic Children’s Aid Society of Hamilton (CYFSA s.120)

WRITTEN SUBMISSIONS

MV, Applicant Kimberley Farrell, Licensed Paralegal

Catholic Children’s Aid Society of Hamilton, Respondent Mona Anis, 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 Application was found eligible to proceed under sections 120(4)5 of the Act: the Respondent is alleged to have failed to provide the Applicant with reasons for decisions that affected her interests.

3The Applicant submitted an Internal Complaints Review Panel (ICRP) complaint to the Respondent on June 25, 2020. The Complaint was found ineligible for review as the Applicant is not a service recipient, rather, she raised concerns about her grandson with the Respondent.

4The Applicant is the grandmother of TS (the “Child”). The issues/concerns listed below have been taken from the ICRP Complaint and the Application:

1. Concerns regarding a lack of communication between the Applicant and the Respondent regarding the Applicant’s concerns about the living arrangements of her grandson;

2. Concerns that the Applicant was not provided with a decision from the Respondent regarding the living arrangements for the Child to take to Court which resulted in her withdrawing her application for custody of the Child.

5In its Summary Reply, the Respondent argued that the complaint was not eligible for review by the CFSRB and should be dismissed as the Applicant did not seek or receive services. The Respondent cited K.H. and T.H. v. Children’s Aid Society of Toronto, 2017 CFSRB 21 at paragraph 17 which found: “Persons making referrals are expressing concerns about the safety or well-being of a child, and not seeking services for themselves from the Society”. The decision also indicated that a person: “is not entitled to feedback on their complaint, nor to reasons for a Society’s decisions”.

6The Respondent also argued that the current Application is analogous to the reasoning in W.M. v. CCAS of Hamilton (February 19, 2019; CA19-0040) where an applicant brought concerns about a child’s placement and wellbeing to the Society’s attention and is not satisfied with the Society’s response. In this case, the Applicant has not sought or received services from the Society.

7The Respondent argued that legal obligations relating to privacy and confidentiality precluded it from sharing any details flowing from the Respondent’s investigation of the concerns expressed by the Applicant.

8In her submissions, the Applicant argued that the Respondent improperly identified the Applicant’s concerns and have not reported true facts pertaining to the Applicant’s concerns. The Applicant was provided de facto guardianship of the Child by the Child’s mother until the time he was removed from the Applicant’s home.

9The Respondent had provided services to the Applicant by virtue of the fact that the Respondent informed the Applicant that they were informing Hamilton Police of a child protection order that would ensure that the Child’s mother could not remove the Child from his grandmother’s home until an investigation was complete.

10The Applicant argued that she was entitled to receive services but was denied those services.

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.

12In section 2(1), 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”).

13H.L.B. v. Chatham-Kent Children’s Services (CFSA s. 68), 2012 CFSRB 4 (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.

14A “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.

ANALYSIS

15In analyzing the claim, firstly, I focused on whether the Applicant had the lawful custody of the child and could be considered a parent under the Act, and secondly, was the Applicant in receipt of services as per section 120(1) of the Act.

16I find that the Applicant has failed to provide sufficient credible or trustworthy evidence to persuade me that she had lawful custody or “de facto” lawful custody of the Child. The evidence before me indicated that the Child’s mother has lawful custody of the Child. For example, the CPIN noted of May 29, 2020 confirmed that the Worker clarified with the Applicant whether she had guardianship/legal custody of the Child. The Applicant indicated that she did not. The Worker went on to explain to the Applicant that she was not entitled to know information relating to the Child or the Applicant’s daughter without consent.

17While I note that the Child was living with the Applicant before he was removed, this arrangement was not one that was reflected in any formal legal agreement. I note that, in the letter from the Applicant to the Respondent dated July 24, 2020 appended to the ICRP complaint, the Applicant indicated that: “There was a Material Agreement signed by both me, and Ms. S, giving joint custody to both of us that was signed in June 2008 ending and dismissing the original application in Brampton Courts, and further that she would assure that TS had bi-weekly visits to me, should she leave”. The Applicant did not provide a copy of the agreement or any Court documents supporting this assertion. In addition, this assertion is contradicted by the Applicant’s admission to the Worker in the CPIN note that she did not have guardianship or legal custody of the Child.

18For the reasons outlined above, I could not find that the Applicant was a parent to the Child.

19Secondly, I considered whether the Applicant was in receipt of services pursuant to section 2 (1) of the Act. The evidence before me is that the Applicant reported concerns with the living arrangements, the safety, and the welfare of the Child to the Respondent. The Respondent then initiated an investigation. The Applicant did not receive counselling or other child protection or preventative services from the Respondent in relation to her child welfare concerns. The CPIN Note and other documents before me indicate that there has been communication between the Applicant and Respondent staff; however, this communication related to the referral and investigation process; the Applicant’s concerns about the Child; the Child’s mother’s rights; legal remedies available to the Applicant; possible brokering of communication between the Applicant and the Child; and the ICRP complaint.

20I considered the Applicant’s assertion that being told by the Respondent that it intended to inform Hamilton Police of a child protection order related to the Child amounted to a service. I find that the Respondent’s actions toward the police did not amount to a service to the Applicant pursuant to section 2(1) of the Act. The Respondent was informing authorities of an order by the Court.

21Given the lack of evidence of services being provided to the Applicant, and after consideration of the two cases cited by the Respondent (above), I find that the Applicant was strictly a referent and that her complaints were not about services she herself has sought or received. Rather, her complaints focused on her concerns for her grandchild and the Respondent’s position related to custody and access issues. As such, the Applicant’s concerns are precluded from review pursuant to section 120(1) of the Act.

22In closing, I would note that the Applicant’s frustration with the interaction between herself and the Respondent could have been mitigated through enhanced communication between the two parties (within privacy and confidentiality guidelines) throughout the reporting, investigation and complaint process.

SUMMARY

23I find that the CFSRB does not have the jurisdiction to address the issues included in the complaint given that the Applicant has not received services from the Respondent. She does not have status as a parent in relation to the Child. The Applicant is a referent who is the Child’s grandmother. The CFSRB does not have jurisdiction to review complaints of grandparents who are not service recipients under the Act.

ORDER

24The Application is dismissed.

CONFIDENTIALITY ORDER

25Pursuant 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.