CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JP Applicant

-and-

Halton Children’s Aid Society Respondent

DECISION

Adjudicator: Daniel McSweeney Date: August 27, 2021 Citation: 2021 CFSRB 58 Indexed As: JP v Halton Children’s Aid Society (CYFSA s.120)

INTRODUCTION AND BACKGROUND

1This is an Application (“Complaint”) filed with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

2The Complaint was found eligible pursuant to section 120(4)5 of the Act. It is alleged that the Respondent has failed to provide the Applicant with reasons for a decision that affected her interests.

3The Applicant is the maternal aunt of her nephew (the “Child”) who had been placed with her in a kinship arrangement.

4The Applicant identified the following Concerns/Issues in her Complaint:

1. The Applicant was concerned that the Respondent did not provide her with information regarding how the Child received the multiple fractures while in the care of his biological parents;
2. The Applicant was concerned that the Respondent did not provide her with an explanation for its decisions regarding access and custody with the Child’s father despite having been informed of the concerns with the impact of access and custody on the Child; and
3. The Applicant was concerned that she was not provided an explanation as to why she was not given temporary custody of the Child.

5In the Eligibility Decision dated August 5, 2021, the parties were informed that, within 20 days of the Eligibility Decision, the CFSRB would decide to hold a hearing and schedule a pre-hearing, or would decide the Application without holding a hearing.

6The CFSRB received the Respondent’s Summary Reply on August 16, 2021. The Summary Reply contained a history of the Respondent’s involvement and interaction with the Applicant.

7The Respondent indicated that the Child was placed in a kinship arrangement with the Applicant and the Child’s maternal grandmother while the Respondent investigated the Child’s injuries. This arrangement was consented to by both parents.

8In June 2020, the Applicant was recommended for approval as a kin service provider. That same month, the Child’s father presented a plan for he and his parents to care for the Child. The Respondent did not support this plan and recommended that the Child remain with the Applicant until the investigation was completed and the father’s plan could be assessed.

9In November of 2020 the Applicant submitted a plan to have the Child placed with her more permanently. The Respondent informed the Applicant and the Child’s father of its intention to bring the matter to Court; but asked if parties would participate in a child protection mediation. The mediation took place between March and July 2021 during which each of the permanency plans was discussed. The Applicant was represented by Counsel during the mediation process.

10On June 10, 2021, the Respondent’s Legal Counsel communicated with the Applicant’s Counsel regarding 3 issues:

1. The Respondent’s position is that kinship arrangements were meant to be temporary in nature to allow a parent to address the protection concerns, or to present a different plan;
2. The father never consented to the Child living with the Applicant as a long-term permanent plan; and
3. The Respondent has continued to work with the family and has been actively assessing the father’s plan.

11The Applicant expressed to the Respondent that she felt that she was not being heard by Respondent staff on July 6, 2021. A final mediation session took place on July 9, 2021 and the parties could not come to an agreement regarding a permanent plan for the Child. As a result, the Respondent decided to move forward with the father’s plan on July 13, 221.

12On July 15, 2021, the Respondent’s Counsel informed the Applicant and her Counsel that the Respondent would be moving forward with the father’s plan to place the Child in the joint care of the father and his parents. The Respondent will continue to monitor the placement. The Respondent reiterated that it did not have any concerns with the Applicant’s care of the Child; however, it was the Respondent’s belief that kin placements were meant to be temporary in nature. In this instance, there is a biological parent who has cooperated with the Respondent to safety plan for the Child and who has presented a plan that would see the Child safely returned to his care. This is consistent with the purpose of the Act. The Respondent indicated that, if the Applicant does not cooperate with the reunification plan or the Child’s mother opposes the placement, the Respondent will commence a Protection Application.

13The Applicant’s Counsel advised the Respondent that the Applicant does not agree with the Respondent’s plan and that the Respondent would need to commence a Protection Application. The Respondent confirmed that the matter will proceed to Court on August 26, 2021.

14The Respondent argued in its Summary Reply that the Applicant has been told repeatedly why it is pursuing a plan to return the Child to his father’s care. The Respondent has never withheld its position that kin placements are meant to be temporary and that it is obligated to work with the Child’s parents towards reunification when it is possible. The Applicant’s disapproval of the Respondent’s decision does not mean that the Respondent never explained the rationale to the Applicant and her Counsel.

15The Respondent asked the CFSRB to dismiss the Complaint without a hearing as the CFSRB is aware that the Respondent is mandated to work towards the least intrusive plan that would adequately protect the Child.

THE LAW

16Section 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 CFSRB. Section 4(5) indicates that: “the CFSRB may review allegations that the society has failed to provide the complainant with reason for a decision that affects the complainant’s interests.”

17The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or videoconference. Rule 8.1 of the CFSRB Rules provides:

In deciding the format of a hearing, the CFSRB will consider:

a) whether it is a fair and accessible process for the parties; b) the costs and efficiency of the process; c) the potential for a more expeditious resolution; d) the convenience of the parties; e) the consistency with the CFSRB’s mandate; f) whether the facts or evidence may be agreed upon; g) the estimated duration of the hearing; h) whether the issues for hearing are predominantly legal issues; i) whether oral testimony is likely to be needed; j) any objections to the format of the hearing.

ANALYSIS

Format of the Hearing

18I considered the Rules 8.1 (a) to (j) of the CFSRB Rules regarding the format of the hearing in conjunction with the contents of the Application as well as the Respondent’s Summary Reply.

19The Applicant was concerned that she was not informed of the causality of the Child’s injuries; that she was not heard when she expressed concerns to the Respondent regarding access by the father to the Child; and her concerns with the father’s permanency plan were not heard.

20I find that the most expeditious and effective way of dealing with the Complaint is through a written hearing. The Respondent has provided a detailed chronology of the interactions between the Applicant over the past 17 months and the Respondent’s efforts to provide explanations to the Respondent for its actions and decisions regarding the Child. The Summary Reply addresses most of the issues identified by the Applicant in her Complaint (see paragraphs 21 – 23 below). As such, I find that I have sufficient evidence before me to decide the Complaint. Additional oral evidence is not required. Deciding the Complaint in writing is consistent with the CFSRB’s mandate of rendering decisions in a fair and expeditious manner.

Adequacy of Reasons

21The Summary Reply did not specifically address the Applicant’s allegations that the Respondent has failed to provide her with an explanation for the Child’s injuries. Under normal circumstances I would consider sending this issue to a pre-hearing mediation; however, I have found that the nature of the issue precludes addressing it through the CFSRB process. Part X of the Act addresses the collection, use, and disclosure of personal information. A service provider has the duty not to disclose the personal information of an individual unless the service provider has the individual’s consent to disclose, or unless it is necessary for a lawful purpose (see section 286 of the Act).

22In this case, the Child is in a temporary kin placement with the Applicant. The Applicant is not a legal parent, and, as such, does not have legal access to the personal information of the Child, including information regarding his injuries. The Respondent cannot share any personal information with the Applicant.

23Furthermore, I find that the CFSRB does not have jurisdiction to address complaints regarding the disclosure of personal information. These issues are now the responsibility of the Office of the Information and Privacy Commissioner of Ontario (IPC). The Applicant can approach the IPC with any complaints regarding disclosure of the Child’s personal information.

24With respect to the remaining issues, I find that the Applicant has been provided with adequate reasons for the Respondent’s interpretation of kin care; and its decision to return the Child to his father’s care.

25While the contents of mediation process are confidential, I note that the Applicant was represented by Counsel throughout. During the mediation process, the Respondent communicated with the Applicant and her Counsel regarding its position on the purpose of kin placements; parental consent to kin placement; and access and permanency planning (see paragraph 10 above).

26Once mediation had broken down, the Applicant and her Counsel were provided an e-mail which explained the Respondent’s decision regarding permanency plans; and its position regarding the temporary nature of kin placements. The e-mail also discussed transition planning and the Respondent’s plans should the Applicant and/or the Child’s mother oppose the reunification plan.

27Finally, the Applicant opposed the reunification plan and therefore the matter will be heard at Court on August 26, 2021. The Court proceedings will no doubt provide an additional opportunity for the Respondent to provide the Applicant with reasons as to its decisions regarding access and permanency planning for the Child. The Applicant and her Counsel will have an opportunity to question the Respondent and challenge any of the Respondent’s decisions.

28Based on the foregoing, I find the Applicant has been provided with an explanation for the Respondent’s decision in writing on at least 2 occasions. The matter is also before the Court on the day that I am writing this decision. The protection proceedings will provide the Applicant and her Counsel with an additional opportunity to hear the Respondent’s explanations for its decisions regarding access and custody of the Child.

29In this case, the Applicant simply disagrees with the Respondent’s position. This is not sufficient to support an allegation that she was not provided with adequate reasons for the Respondent’s decisions and actions.

30For these reasons, the Applicant’s Complaint is dismissed in its entirety.

CONFIDENTIALITY ORDER

31Pursuant 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 online. 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.