JD v Children’s Aid Society of the District of Sudbury and Manitoulin, 2021 CFSRB 57

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JD

Applicants

-and-

Children’s Aid Society of the District of Sudbury and Manitoulin

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: August 26, 2021

Citation: 2021 CFSRB 57

Indexed As: JD v Children’s Aid Society of the District of Sudbury and Manitoulin (CYFSA s.120)

INTRODUCTION

1This is an Application under subsection 120(4) of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

BACKGROUND

2The Applicant is a foster parent of CB who had turned 18 years of age at the time of the Application. The Applicant complained that the Respondent failed to hear his concerns regarding the best interests of CB in relation to the Respondent’s plans to transition the Child from foster care to adult protective services. CB has been diagnosed with a variety of physical, developmental, and sensory disabilities. The Applicant is concerned about the impact of the transition on the CB’s wellbeing and health. In addition, the Applicant would like to ensure that CB’s interests and rights are represented in relation to legal and medical issues.

3The parties participated in a teleconference on April 26, 2021 during which the Applicant requested an adjournment to seek legal representation. In addition, the parties discussed and identified the following 3 jurisdictional issues which could assist the Applicant in seeking legal advice.

1. Past CFSRB decisions have held that foster parents are not in receipt of services from a children’s aid society but rather are providing services to a children’s aid society. Thus, complaints by foster parents about their interaction with children’s aid societies are generally not eligible for review by the CFSRB under section 120 of the Act;

2. It is not clear whether the Application is intended to be a complaint about services (section 120 of the Act) or about the proposed removal of a foster child (section 109 of the Act). Strict notice and filing timelines apply to section 109 applications as well as the requirement that the child involved be in extended society care; and

3. Child is defined in the Act as “a person younger than 18” (section 2.(1)) and CB is now 18 years old.

4The Applicant was unsuccessful in finding counsel to assist him in the complaints process.

5In a subsequent Case Management Direction, the parties were asked to provide submissions on the CFSRB’s jurisdiction to review the Application on the 3 issues identified above.

6The Applicant’s submissions addressed the reasons for his opposition to the removal of CB from his home; however, the submissions did not address the jurisdictional issues identified above. The Applicant reiterated his concerns regarding CB’s exposure to COVID; concerns regarding CB’s adjustment to his placement; concerns with the feeding, medication, and care of CB; and concerns that CB’s interests are not being heard and defended.

7The Respondent submitted that CB has been in extended society care since June 22, 2004. The Applicant has been a foster parent for CB throughout his time in care. Foster parents are not in receipt of services from the Respondent, rather they provide a service to the Respondent and are compensated for this service. Furthermore, the Respondent argued that the CB is no longer a child as he turned 18 on April 2, 2021. The Extended Society Care Order expired on CB’s 18^th birthday as per section 123 of the Act.

8The Respondent argued that the CFSRB does not have jurisdiction to consider the issues addressed by the Applicant and requested that the complaint be dismissed in its entirety.

THE LAW

9Section 120 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 Child and Family Services Review Board (“CFSRB”).

10Subsection 2(1) of the Act defines a service to include:

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 mental health care for a child,

d) a service for a child who is or may be in need of protection of 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.

11A “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.

12Section 15(2) of the Act ensures 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.”

13H.L.B. v. Chatham-Kent Children’s Services (CFSA s. 68), 2012 CFSRB 4 (2012-02-01) (para. 51) examines the issue of who is in receipt of services.

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. For example, the Board has held that foster parents or teachers who are the subject of an investigation by a society are receiving a service and are entitled to reasons relating to the decisions made in the investigation. The Board has also held that grandparents who have sought access to their grandchildren from a society that controls access have a right to reasons.

ANALYSIS

14For 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.

15I find that, as a foster parent, the Applicant did not seek or receive services from the Respondent. Rather he was providing a service to the Respondent.

16In addition, I note that the Applicant does not have lawful custody of CB and, therefore, he is ineligible to have his complaint heard under 15(2) of the Act which addresses the rights of parents and children.

17I considered the application of H.L.B. v. Chatham-Kent Children’s Services to this complaint. I have not been provided with any evidence that the Applicant is currently subject to an investigation by the Respondent which would place him in receipt of Respondent services.

18Given the foregoing, I find that the Applicant is not in receipt of services from the Respondent. Therefore, the CFSRB does not have jurisdiction to review the complaint under sections 120 (4) 4 and 5 of the Act.

19I also note that this decision focuses on the service-related complaints by the Applicant. It does not address issues of jurisdiction and merits of any application under section 109 of the Act which may be subject to review by the CFSRB.

20Finally, given that the Applicant was found not to be a parent and not to be in receipt of services from the Respondent, I do not need to address the jurisdictional issue related to CB’s age.

21Given that the Applicant has been found not to be in receipt of services, and not to have legal custody of CB, I find the Application to be ineligible for review by the CFSRB.

22Before closing, I would like to recognize the 18 years of loving service the Applicant and his wife have dedicated to CB. From their Complaint, I note that this has not been without immense sacrifices on their part. I commend the Applicant and his wife on their continued efforts to ensure the health, safety, and well-being of CB.

CONFIDENTIALITY ORDER

23Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any CFSRB 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 CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.