MCFD Decision-making via Renee Miller

 

MCFD Decision-making via Renee Miller fb page, Against MCFD- Parents fighting for second chances

The Law Society lists as: reneeamiller@me.com

“Parents, some important news and updates from the Supreme Court about the judicial review of MCFD decision-making. I am a defence lawyer on Vancouver Island. I am not taking any new clients, but I know this information is valuable to you and so I share it with you here. The Supreme Court weighed in on an important issue yesterday (July 25, 2018) about the judicial review of MCFD decisions which has not been made previously available to parents.

Currently, any child, young adult, parent, or representative of any of those three may at any time request an administrative review of any decision, act or failure to act of the MCFD (social worker) that relates to a service to a child, young person, young adult or family member under s. 15 of the Child Family and Community Service Regulations. When you request this form of administrative review under s. 15 of the Regulations, the MCFD has 30 days to complete their report. The request for an administrative review can be made to your social worker directly (although I don’t recommend that option because the social workers may not be aware of their statutory obligations and delays beyond the 30 days can occur), or through the complaints line at 1-877-387-7027.

You do not need a lawyer in order to engage with this part of the MCFD administrative review. The complaints specialist on the other end of the phone is a social worker in another jurisdiction who will review the decision of the MCFD. The complaint specialist will ask you if you want a resolution or an administrative review. If you chose the resolution, you will not have exhausted your internal administrative review remedies and you will not be able to proceed to Supreme Court on a judicial review. I am not suggesting that a resolution may not be appropriate, and you are welcome to try that option first and if the outcome is unsatisfactory then follow-up again and ask for the administrative review under s. 15 of the CFCS Regulations.

I have requested administrative reviews for the following kinds of MCFD decisions: removal of a child from a non-consenting parent pursuant to a safety plan, the decision to remove First Nations children from their First Nations school and put them in public school absent the cultural consultation that was agreed to at mediation, the MCFD refusal to provide a second mediation to a client when the second mediation was promised in writing to that parent, imposition of a safety plan that resulted in the removal of a parent from the home when the MCFD had only a suspicion of possible future domestic violence, causing that family financial stress. Complaints could equally be made about MCFD decisions to move children between foster homes.

The MCFD Complaints Process brochure that is available at the Justice Access Centre and the MCFD offices tells parents that ineligible complaints include “a complaint about any matter that is currently before the court.” THIS IS NOT TRUE. All of the above examples I provided were for clients who had matters currently before the provincial court. The Supreme Court asked the MCFD to amend this publicly available information so that parents are aware of both their rights of administrative review, and then the option of judicial review in Supreme Court of MCFD decisions.

Parents will always receive a letter from the MCFD following the completion of an administrative review. In that letter the MCFD will suggest to you that if you don’t believe the MCFD has followed a fair process that you can request an external review through the Ombudsperson. This is misleading. The Ombudsperson has no authority to review decisions of the MCFD until your judicial review options in Supreme Court have been exhausted (see s. 11(1)(a) of the Ombudsperson Act.) Also, don’t try to get the Representative of Children and Youth to help you, they can’t review decisions of the MCFD absent critical injury or the death of a child (see s. 6(1)(c) of the Representative of Children and Youth Act).

Parents, when you are unhappy about the outcome of an administrative report, your next step is a judicial review of the original MCFD decision in Supreme Court. It will be nearly impossible for you to take this next step without assistance from counsel. In order to have the MCFD judicially reviewed in Supreme Court you will have to first ask for the Supreme Court to waive your $200.00 filling fees (the people I represent in criminal law never have to pay a filling fee to have the Supreme Court review their bail/sentence or conviction). I personally believe that it is a s. 7 Charter violation to ask a parent to have to pay a $200.00 filling fee to attempt to hold the MCFD accountable for their decision making.

The “Order to Waive Fees Package” is available on the Supreme Court website under Supreme Court Information Packages. You can take this information with you to the Justice Access Centre and a lawyer there can help you fill out the paperwork. You can fill in by hand the financial statement, the educational and employment history and work place skills portions. You will need to type out the Order to Waive fees portion (for the Court), and you will also need to attach a draft petition to your request to waive fees.

I will make sure that the Justice Access Centre has precedents to help you. If your lawyers need copies of any of those precedents please ask them to email me. The petition engages the involvement of the Attorney General, who then replaces the local Director counsel who normally represents the MCFD in provincial court. You submit the application to Waive Fees to the Registry and the Master will review your paperwork. It usually takes about two weeks for the Court to decide whether your fees will be waived. The registry will charge you $40.00 to notarize your affidavits, so I strongly encourage you to use the local Justice Access Centre offices. Legal Aid is in the process of starting specialized Child Apprehension offices on the island, and lawyers there will also be able to help you. The lawyers have been hired and those resources should be available to you soon.

The petition in Supreme Court challenges the ORIGINAL decision of the MCFD. It doesn’t matter how bad the administrative report may be, the Supreme Court presently believes that the review authority is immune from judicial review because the review authority can only make recommendations. The original MCFD decision itself is not a recommendation, and as long as your legal rights as a parent have been breached you will have a cause of action for judicial review against the MCFD in Supreme Court under the Judicial Review Procedures Act. In order for the Supreme Court to review the MCFD, you must have first completed the administrative review process under s. 15 of the CFCS Regulations. The Supreme Court will want to review the recommendations in that report.

I believe that judicial reviews of MCFD decision making are half the work of child protection law. Legal aid, however, believes that judicial review of MCFD decision making is currently beyond their funding mandate. That mandate may well change with the advent of the specialized CFCSA clinics that are due on the Island. I tell my clients that I will gladly pursue a review of the MCFD, but that the hours I have been given on the legal aid referral will be used entirely on the Supreme Court matter and you may or may not qualify to receive a second referral for the on-going provincial court CFCSA issues.

I hope this is a helpful overview of the full MCFD review process. Please know I am never on Facebook and if I don’t reply to you it is not because my heart does not go out to you for the sheer enormity of the task ahead of you. I believe that legal reform must happen to permit parents an easier avenue of judicial review of MCFD decisions. The provincial court is a statutory court with limited ability to review most day-to-day decisions of the MCFD. Only the Supreme Court currently holds that jurisdiction. There is a great deal the government can and should do to help parents review the decisions of the MCFD. This information is province specific, but no doubt the principles are the same in other provinces.”

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