TB v. Children’s Aid Society of the District of Thunder Bay, 2020 CFSRB 98

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

TB

Applicant

-and-

Children’s Aid Society of the District of Thunder Bay

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: November 13, 2020

Citation: 2020 CFSRB 98

Indexed As: TB v Children’s Aid Society of the District of Thunder Bay

(CYFSA s.120)

WRITTEN SUBMISSIONS

TB, Applicant

Self-Represented

Children’s Aid Society of the District of Thunder Bay, Respondent

Mary Catherine Chambers, 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 section 120(4)5 of the Act: The Respondent is alleged to have failed to provide the Applicant with reasons for decisions that affected his interests.

3The Applicant is the uncle of 2 great-nieces (“Children”) who were placed with him in a foster arrangement. The Application outlined the following issues:

1. The Respondent did not follow the rules regarding the gradual return of the Children to their parents, including the decision to allow the children to stay with their parents from July 20 – 24;

2. The Respondent has not kept the Applicant informed when decisions about the Children are being made; and

3. The Applicant did not consider the Applicant’s worries regarding the parent’s finances, their potential involvement in illegal activities, and their completion of parenting programs.

4In a Case Management Direction (CMD) dated October 7, 2020, the parties were directed by the CFSRB to provide written submissions on the CFSRB’s jurisdiction to hear the complaint. They were asked to refer to the Ontario Court of Appeal decision in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441. The Respondent was asked to consider that Rule 21.2 of the CFSRB’s Rules of Procedure which requires a children’s aid society relying on section 120(8)(a) of the Act to provide “all relevant documents and any Court orders”.

5In its Reply to the CMD, the Respondent argued that the CFSRB did not have jurisdiction to hear the matter as the complaint did not relate to a service sought or received by the Applicant from the Respondent as the Applicant was a foster parent to the Children. In addition, the Respondent submitted that the CFSRB did not have the jurisdiction to review the complaint as the matters raised in the Application (placement of the Children) are the subject of a Protection Application that is currently before the Court. There are no issues raised in the complaint that are separate and distinct from the Protection Application. Finally, the Respondent argued that the Applicant was not entitled to the information he sought regarding the Children’s parents. The Respondent views the Applicant’s expressed concerns related to the alleged trafficking of drugs by the parents similar to the concerns expressed by any referent. As such, the Applicant is not entitled to information regarding the Respondent’s investigation of the allegations.

6The Applicant was asked to make further submissions on the Respondent’s submission, including regarding whether or not he was in receipt of services. The Applicant’s submissions conceded that the he was not objecting to the Children being returned to their parents, rather, he was concerned with the speed in which it happened and that his concerns with the transition were never answered by the Respondent. The Applicant was not informed if the parents complied with conditions to have the Children returned to them. The Applicant still has concerns that were forwarded to Respondent staff who have indicated that the concerns are not warranted at this time.

THE LAW

7Section 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

8The 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).

9Section 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.

10The Act defines “service” as follows:

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 purpose of the Youth Criminal Justice Act (Canada) or the Provincial Offences Act, or

i) a prescribed service; (‘service’).

11A parent is defined in section 2(2) of the Act 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.

12“Foster care” is defined in section 2(1) the Act as the provision of residential care to a child, by and in the home of a person who,

a) receives compensation for caring for the child, expect under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and

b) is not the child’s parent or person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing).

ANALYSIS

13In analyzing this complaint, I focused on whether the CFSRB had the jurisdiction to review the Application pursuant to section 120(8) of the Act; whether the Applicant was in receipt of services; and whether, as a referent, the Applicant had a right to be informed of the Respondent’s actions in relation to his concerns related to the health and safety of the Children.

14The Applicant’s concerns related to issues of access, custody, the return of the Children to their parents, and parenting capacity of the parents were before the Court. The Respondent provided evidence that these issues were considered by the Family Court in Thunder Bay and decided by Justice D.J. Mackinnon in Orders dated July 18, 2019 and March 4, 2020. I note that the Applicant was not a party to these proceedings, and therefore may not be aware of the contents of the Orders. Nevertheless, I find that these issues were before the Court and continue to be before the Court. As such, the CFSRB does not have jurisdiction to address Applicant’s concerns related to these issues as per section 120(8) of the Act.

15I considered whether the Applicant was in receipt of services from the Respondent. The Applicant was asked to comment on the Respondent’s submissions on this issue. It is clear from the documents presented that the Applicant was acting as a contract employee for the Respondent in his role of foster parent. The Applicant did not provide any evidence that he received services in his role of foster parent such as being subject to a child protection investigation. Therefore, I find that the exceptions in H.L.B. v. Chatham-Kent Children’s Services (CFSA s. 68) 2012 CFSRB 4 do not apply to the Applicant’s situation and therefore he is not in receipt of services. As such, his complaint is precluded from a review under section 120 of the Act.

16I also considered the Respondent’s argument that the Applicant’s concerns were those of a referent and therefore the Applicant was not due any information regarding the investigation of the concerns. While there are overlapping roles (foster parent/referent), I find that the Respondent is precluded from providing the Applicant with information regarding the parents based on confidentiality and privacy legislation. I concur with the Respondent that the Applicant has no entitlement to information regarding the Respondent’s investigation or the outcomes of the investigation.

SUMMARY

17Given that the issues in the Application are issues that were before the Court, I find that the CFSRB is precluded from reviewing the Application as per section 120(8) of the Act. Given that the Applicant was the foster parent of the Children and was not in receipt of services from the Respondent, I find that the complaint cannot be reviewed as per section 120 of the Act. Finally, I find that the Applicant was considered a referent by the Respondent when he reported concerns regarding the safety of the children. As a referent, the Applicant is not privy to the investigation and any follow-up actions on the concerns reported.

18The Applicant has expressed concerns related to the safety of the Children and I note that the covering letter to the Respondent’s submissions indicated that:

“While the Society takes the position the CFSRB is without jurisdiction to hear Mr. B’s complaint, the Society takes this opportunity to advise Mr. B that once this matter is resolved by the CFSRB, a Society worker will be reaching out in the hopes of scheduling a time to discuss Mr. B’s concerns”.

19I am confident that the Respondent will make good on its commitment to discuss the Applicant’s concerns, especially given the kin ties that the Applicant has to the Children.

ORDER

20For the reasons outlined above, the Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

21Pursuant 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.