Murphy
J.:
This
is
an
application
by
the
Applicants
for
the
following
orders,
namely:
(a)
an
order
that
Pam
Jobe
and/or
Dean
Bryant
be
named
litigation
guardian(s)
for
their
co-applicants;
(b)
a
declaration
that
the
actions
of
the
Respondent
in
making
application
for
the
Children’s
Special
Allowance
and
allegedly
terminating
the
Applicants’
receipt
of
the
Child
Tax
Benefits
during
the
currency
of
the
child
protection
proceedings
in
the
Ontario
Court
(Provincial
Division)
is
an
abuse
of
process,
is
in
breach
of
the
legal
obligations
and
duties
of
the
Minister
of
Community
and
Social
Services
and
the
Respondent
under
the
Child
and
Family
Services
Act
and
a
breach
of
the
rights
of
the
Applicants
guaranteed
by
sections
2,
7,
9
and
15
of
the
Canadian
Charter
of
Rights
and
Freedoms;
(c)
an
order
pursuant
to
s.24
of
the
Canadian
Charter
of
Rights
and
Freedoms
and/or
s.51
and/or
s.52
of
the
Child
and
Family
Services
Act
that
the
Respondent
reimburse
Pam
Jobe
and
Dean
Bryant
the
amount
of
Child
Tax
Benefit
lost
as
a
result
of
the
Respondent’s
actions
and
maintain
equivalent
payments
until
the
conclusion
of
the
Respondent’s
protection
application
by
settlement
or
final
court
order;
(d)
alternatively,
for
an
order
directing
the
Respondent
to
withdraw
its
application
for
Children’s
Special
Allowance
and/or
to
pay
the
money
it
receives
for
the
children
to
Pam
Jobe
and
Dean
Bryant,
and
an
order
adjourning
this
application
until
the
earliest
of
the
completion
of
the
trial
in
the
protection
application
dated
August
18,
1998
and
now
before
the
Peterborough
branch
of
the
Ontario
Court
(Provincial
Division)
under
file
number
294(98),
or
the
filing
of
a
consent
to
judgment
in
the
protection
application,
or
the
return
home
of
the
children,
or
11
months
from
the
date
of
this
application.
The
Respondent
in
this
proceeding
commenced
a
protection
application
in
Ontario
Court
(Provincial
Division)
on
August
18,
1998
requesting
a
finding
of
the
court
that
the
children
Ceedar
Jobe-Bryant,
Willow
Summer
Jobe-Bryant,
Carradene
Jobe-Bryant
and
Arion
Jobe-Bryant
(“the
children”)
were
in
need
of
protection.
The
children
had
been
apprehended
on
August
15,
1998
and
in
their
interest
they
were
placed
with
foster
parents
by
the
Respondent,
to
provide
for
their
needs
and
care
while
the
protection
application
was
proceeding.
The
Respondent
has
temporary
care
and
custody
of
the
children
by
order
of
the
Ontario
Court
(Provincial
Division).
The
ages
of
the
children
are
as
follows:
Ceedar
Jobe-Bryant
—
16
months;
Willow
Jobe-Bryant
—
three
and-a-half
years;
Carradene
Jobe-Bryant
—
four
and
three-quarters
years;
Arion
Jobe-Bryant
—
six
and
three-quarters
years
The
protection
application
has
been
adjourned
from
time
to
time
on
consent
of
the
parties.
The
application
has
been
adjourned
to
March,
awaiting
a
report
from
the
Family
Court
Assessment
Service.
Ann
Farquharson,
Barrister
and
Solicitor,
has
been
appointed
by
court
order
and
by
the
Office
of
the
Children’s
Lawyer
to
be
the
representative
of
the
children
in
the
child
protection
proceedings.
It
is
the
Respondent’s
position
in
the
protection
application
that
the
children
are
at
significant
risk
of
harm
from
their
parents.
The
Respondent
claim
that
one
of
the
grounds
for
apprehending
the
children
was
the
Respondent’s
suspicion
the
parents
would
flee
the
province
rather
than
work
with
the
CAS.
The
children
have
remained
in
the
care
of
the
CAS
since
August
18,
1998.
The
parents
have
obtained
access
to
the
children
on
Monday
and
Thursday
evenings
between
4:15
and
6:30
and
on
Sundays
from
10:00
a.m.
to
4:00p.m.
Such
visits
take
place
in
the
home
that
the
Applicants
have
rented.
The
children
reside
with
foster
parents
at
all
other
times.
The
foster
parents
have
been
providing
for
the
children’s
needs,
including:
(a)
supervising
their
daily
activities
and
providing
for
their
daily
needs,
(b)
maintaining
the
children’s
secure
environment,
(c)
arranging
for
the
children’s
transportation
to
and
from
all
activities,
(d)
attending
to
the
children’s
hygienic
needs,
(e)
generally
providing
guidance
and
companionship
to
the
children.
The
parents
are
to
provide
for
clothing
and
costs
incurred
during
their
access
visits.
From
August,
1998
until
January,
1999
the
parents’
income
consisted
of
the
Canada
Child
Tax
Benefit
(“CCTB”)
of
$1,196.24
per
month,
supplemented
by
occasional
income
from
part-time
employment
by
Dean
Bryant.
The
Applicants
signed
a
lease
for
one
year
for
part
of
a
house
at
461
Howden
Street
in
Peterborough,
for
$750
per
month.
It
is
the
Applicants’
position
that
they
did
so
with
the
knowledge,
approval
and
encouragement
of
the
Children’s
Aid
Society.
That
fact
is
in
dispute
by
the
Children’s
Aid
Society.
It
is
the
Applicants’
position
that
the
lease
of
the
house
is
an
important
part
of
the
Applicants’
position
in
the
protection
application
as
evidence
of
their
commitment
to
remain
in
Ontario
and
to
work
through
their
problems
with
the
Children’s
Aid
Society.
It
is
the
Applicant’s
position
that
if
they
are
unable
to
continue
to
lease
these
premises
that
their
position
in
the
protection
application
would
be
seriously
undermined.
It
is
the
Children’s
Aid
Society’s
position
that
since
the
children
are
no
longer
residing
with
their
parents
that
the
CAS
was
obligated
to
apply
for
and
obtain
an
allowance
under
the
Children’s
Special
Allowance
Act.
The
Applicants’
position
is
that
the
action
of
the
CAS
in
applying
for
this
Children’s
Special
Allowance
was
to
terminate
the
payment
of
the
CCTB
to
the
parents.
It
is
the
Respondent’s
position
that
the
parents
were
no
longer
eligible
for
the
payment
of
the
CCTB
as
the
children
no
longer
resided
with
them.
There
was
an
obligation
under
the
CCTB
legislation
that
the
parents
advise
the
authorities
that
the
children
were
no
longer
resident
with
them.
It
is
the
Respondent’s
position
that
it
was
not
their
action
that
resulted
in
the
loss
of
the
payment
of
the
CCTB,
but
the
fact
that
the
children
were
no
longer
residing
with
the
parents.
The
parents
applied
for
and
obtained
welfare.
The
amount
was
determined
on
the
basis
of
welfare
only
for
the
parents.
The
parents
did
not
apply
for,
nor
did
they
obtain,
any
allowance
for
the
children
even
though
it
is
the
Applicants’
position
that
the
children
are,
in
effect,
still
residing
with
them.
It
is
the
Applicants’
position
that
the
resulting
reduction
of
the
parents’
income
undermines
their
ability
to
afford
suitable
accommodation
for
the
children
and
themselves,
and
undermined
their
ability
to
dispute
the
child
protection
application.
The
Respondent
applied
for
and
obtained
a
special
allowance
for
the
benefit
of
the
children
under
the
provisions
of
the
Children’s
Special
Allowance
Act,
S.C.
1992,
c.48,
which
allowance
assists
the
Respondent
in
compensating
the
foster
parents
of
the
children
for
the
home
and
food
that
they
provide
to
the
children.
The
foster
parents
are
paid
for
these
services
on
a
per
diem
basis
and
a
larger
proportion
of
their
compensation
from
the
Respondent
is
directed
to
supplying
the
necessary
finances
to
provide
for
the
physical
needs
of
the
children,
such
as
food.
The
CAS
policy
is
to
apply
for
the
Children’s
Special
Allowance
in
all
cases
where
children
are
taken
into
care.
It
is
the
Respondent’s
position
that
there
is
no
evidence
before
the
court
that
Pam
Jobe
and
Dean
Bryant
notified
the
Minister
of
Human
Resources
and
Development
that
the
children
have
not
resided
with
them
since
the
children
were
apprehended
by
the
Respondent,
nor
have
they
provided
the
Respondent
with
a
copy
of
any
notice
that
they
may
have
received
which
advised
them
that
their
tax
benefit
had
been
discontinued.
The
Federal
Legislation
The
Canada
Child
Tax
Benefit
is
payable
to
parents
of
low
income
by
reason
of
the
Income
Tax
Act
Ch.]
(5th
Supp.),
R.S.C.
1985
as
amended
s.
122.61.
Calculation
of
the
benefit
is
made
by
reference
to
the
number
of
“qualified
dependants”
in
a
parents’
household.
s.
122.6
of
the
statute
defines
a
“qualified
dependant”:
“Qualified
dependant”
at
any
time
means
a
person
who
at
that
time
...
122.6(b)
is
not
a
person
in
respect
of
whom
a
special
allowance
under
the
Children
’s
Special
Allowance
Act
is
payable
for
the
month
that
includes
that
time;
A
special
allowance
to
be
applied
to
the
care,
etc.,
of
a
child
is
payable
where
an
application
is
made
by
an
agency
appointed
by
a
province
for
the
purpose
of
administering
any
law
of
the
province
for
the
protection
and
care
of
children.
The
Applicant
relies
on
the
purposes
of
the
Ontario
Child
and
Family
Services
Act
which
states
as
follows:
a)
As
a
paramount
objective
to
promote
the
best
interests,
protection
and
well-being
of
children.
b)
To
recognize
that
while
parents
often
need
help
in
caring
for
their
children,
that
help
should
give
support
to
the
autonomy
and
integrity
of
the
family
unit
and
wherever
possible
be
provided
on
the
basis
of
mutual
consent;
c)
To
recognize
that
the
least
restrictive
or
disruptive
course
of
action
that
is
available
and
is
appropriate
in
a
particular
case
to
help
a
child
or
family
should
be
followed
d)
to
recognize
that
children’s
services
should
be
provided
in
an
manner
that,
i)
respects
children’s
needs
for
continuity
of
care
and
for
stable
family
relationships,
and
ii)
takes
into
account
physical
and
mental
developmental
differences
among
children.
Child
and
Family
Services
Act
R.S.O.
1990,
Ch
C.ll
s.l(a)
to
(d)
That
Act
contains
specific
provisions
dealing
with
the
financial
contribution
of
parents
of
children
in
care
to
their
support.
It
is
the
Applicants’
position
that
the
Ontario
child
welfare
legislation
provides
a
comprehensive
and
exhaustive
code
for
the
care
and
protection
of
children
who
are
alleged
to
have
been
neglected,
abused
or
abandoned.
Other
statutes
must
not
be
applied
to
displace
the
Child
and
Family
Services
Act
or
to
control
proceedings
that
are
commenced
under
the
Act.
It
is
the
Applicants’
position
that
the
CAS
policy
of
seeking
the
CCTB
before
a
final
order
of
the
Ontario
Court
(Provincial
Division)
is
contrary
to
the
objectives
of
the
legislation
and
is
therefore
ultra
vires
and
unlawful.
It
is
the
Applicants’
position
that
the
operation
of
the
policy
removes
actions
concerning
the
determination
of
issues
relating
to
the
safety
of
children
from
the
ambit
of
the
Child
and
Family
Services
Act
and
is
therefore
unlawful.
Alternatively,
it
is
the
Applicants’
position
that
the
effect
of
the
Children’s
Special
Allowances
Act
is
contrary
to
the
function
of
the
Child
and
Family
Services
Act
in
an
area
which
is
within
the
jurisdiction
of
the
province.
The
Children’s
Special
Allowance
Act
must,
therefore,
be
considered
as
invalid.
It
is
the
Applicants’
position
that
Ontario
Court
(General
Division)
has
an
over-all
supervision
jurisdiction
to
monitor
and
control
its
own
procedure,
including
to
provide
an
appropriate
remedy
where
there
has
been
an
abuse
of
process
and
the
jurisdiction
to
administer
justice
where
no
adequate
remedy
exists
at
law.
It
is
the
Applicants’
position
that
the
operation
of
the
policy
by
the
CAS,
or
alternatively,
the
Children’s
Special
Allowance
Act,
constitutes
an
abuse
of
process
of
the
court.
Applicant’s
Position:
Depriving
parents
of
their
income
during
the
interim
stages
of
proceedings
by
the
operation
of
the
Children’s
Special
Allowance
Act
results
in
a
violation
of
the
principles
of
fundamental
justice
for
the
state
to
provide
a
process
with
one
hand,
namely,
the
detailed
code
of
the
Child
and
Family
Services
Act,
but
deny
meaningful
access
to
it
with
the
other.
It
is
the
Applicants’
position
that
the
families
that
are
dealt
with
in
child
protection
proceedings
are
overwhelmingly
from
the
poorest
part
of
society
and
such
families
will
almost
always
be
dependant
upon
the
Child
Tax
Benefit
to
a
greater
or
lesser
extent.
The
Child
Tax
Benefit
is
only
payable
to
persons
with
low
income.
It
is
submitted
that
the
operation
of
the
policy
of
the
Children’s
Special
Allowance
Act
constitutes
discrimination
on
the
basis
of
poverty,
receipt
of
family
assistance
and
family
status
and
is
contrary
to
s.
15
of
the
Charter
of
Rights
and
Freedoms.
The
court
may
vary
an
order
for
the
interim
care
and
custody
of
a
child
at
any
time.
The
child
might
well
be
left
with
parents
or
taken
into
care.
The
Child
and
Family
Services
Act
provide
that
if
there
has
been
no
determination
of
an
application
within
three
months
of
the
commencement
of
that
application,
the
court
shall
fix
an
early
date
for
a
hearing.
When
the
date
for
the
hearing
is
set
the
court
may
give
such
direction
and
make
such
order
with
respect
to
the
proceedings
as
are
just.
It
is
the
Applicants’
position
that
if
they
had
a
home
where
the
children
could
reside
that
would
be
an
important
factor
when
the
date
for
a
hearing
is
set.
It
is
the
Applicants’
position
that
this
court
has
jurisdiction
to
provide
the
parents
with
a
remedy
using
its
own
general
jurisdiction
or
applying
sections
51
and
52
of
the
Child
and
Family
Services
Act.
Respondents'
Position:
The
CAS
did
not
take
any
act
which
disentitled
the
Applicants
to
the
Child
Tax
Benefit
to
which
the
Applicants
would
otherwise
be
entitled.
The
CAS
took
no
actions
which
resulted
in
any
right
or
rights
of
the
Applicants
under
the
Canadian
Charter
of
Rights
and
Freedoms
being
infringed.
The
Respondent
questions
whether
this
court
is
the
proper
venue
for
the
Application
and
in
effect
object
to
Revenue
Canada’s
assessment
that
the
Applicants
are
not
entitled
to
a
Child
Tax
Benefit.
It
is
the
Respondent’s
position
that
the
Children's
Special
Allowance
Act
provides
an
agency
like
the
Respondent
with
a
financial
allowance,
upon
the
agency’s
application,
to
be
applied
towards
the
care,
maintenance,
education,
training
or
advancement
of
the
child
in
respect
of
whom
the
allowance
is
paid.
It
is
the
Respondent’s
position
that
the
Child
Tax
Benefit
given
to
an
eligible
individual
under
the
provisions
of
the
Income
Tax
Act
is
independent
of
an
agency’s
entitlement
to
an
allowance
under
the
Children's
Special
Allowance
Act
since
it
is
the
underlying
factual
circumstances
of
where
the
child
is
residing
and
who
is
providing
for
the
care
and
upbringing
of
the
child
which
determines
eligibility
for
the
Child
Tax
Benefit.
Section
122.61
of
the
Income
Tax
Act
provides
an
“eligible
individual”,
commonly
considered
the
custodial
parent,
with
a
single
non-taxable
monthly
payment,
referred
to
as
the
Child
Tax
Benefit,
to
assist
individuals
with
little
or
no
income
in
maintaining
a
child.
By
definition,
only
“eligible
individuals”
are
entitled
to
a
Child
Tax
Benefit
and
such
individuals,
to
be
qualified,
must,
among
other
qualifications:
(a)
reside
with
the
qualified
dependant;
and
(b)
be
the
parent
of
the
qualified
dependant
who
primarily
fills
the
responsibility
for
the
care
and
upbringing
of
the
qualified
dependant.
It
is
the
Respondent’s
position
that
the
court
should
be
examining
the
following
factors
to
determine
whether
Pam
Jobe
and
Dean
Bryant
provide
for
the
care
and
upbringing
of
the
children
during
the
material
time,
namely,
(a)
the
supervision
of
daily
activities
and
needs
of
the
qualified
dependant;
(b)
the
maintenance
of
a
secure
environment
in
which
the
qualified
dependent
resides;
(c)
the
arrangements
of,
and
transportation
to,
medical
care
at
regular
intervals
and
as
required
for
the
qualified
dependant;
(d)
the
arrangement
of,
participation
in,
and
transportation
to,
educational,
recreational,
athletic
or
similar
activities
in
respect
of
the
qualified
dependant,
and
(e)
the
attendance
to
the
needs
of
the
qualified
dependant
where
the
qualified
dependant
is
ill
or
otherwise
in
need
of
the
attendance
of
another
person;
(f)
the
attendance
to
the
hygienic
needs
of
the
qualified
dependant
on
a
regular
basis;
(g)
the
provision,
generally,
of
guidance
and
companionship
to
the
qualified
dependant;
and
(h)
the
existence
of
a
court
order
in
respect
of
the
qualified
dependant
that
is
valid
in
the
jurisdiction
in
which
the
qualified
dependant
resides.
It
is
the
Respondent’s
position
that
based
upon
the
evidence
that
Pam
Jobe
and
Dean
Bryant
were
not
eligible
individuals
entitled
to
a
Child
Tax
Benefit
when
the
children
were
placed,
by
court
order,
in
the
care
and
custody
of
the
Respondents.
Ms.
Jobe
and
Mr.
Bryant
should
have
notified
the
Ministry
of
National
Health
and
Welfare
of
their
ineligibility
before
the
end
of
the
month
following
the
apprehension
of
the
children.
If
Pam
Jobe
and
Dean
Bryant
were
successful
in
obtaining
an
order
from
this
court
which
required
the
Respondent
to
withdraw
its
application
for
a
Children’s
Special
Allowance,
this
result
wold
not
have
the
effect
of
automatically
entitling
Ms.
Jobe
and
Mr.
Bryant
to
a
Child
Tax
Benefit.
The
children
would,
in
all
likelihood,
not
be
found
to
be
in
the
care
of
the
parents.
As
a
result,
this
would
negatively
effect
the
welfare
of
the
children
since
neither
the
Respondent
nor
the
Applicants
would
receive
financial
assistance
to
provide
for
the
care
and
upbringing
of
the
children.
Alleged
Infringement
of
Charter
Rights:
Section
15(1)
provides:
(1)
Every
individual
is
equal
before
and
under
the
law
and
has
the
right
to
the
equal
protection
and
equal
benefit
of
the
law
without
discrimination
and,
in
particular,
without
discrimination
based
on
race
nationality
or
ethnic
origin,
colour,
religion,
sex,
age
or
mental
or
physical
disability.
(2)
Subsection
(1)
does
not
preclude
the
law,
program
or
activity
that
has
as
its
object
the
amelioration
of
conditions
of
disadvantaged
individuals
or
groups
including
those
that
are
disadvantaged
because
of
race,
national
or
ethnic
origin,
colour,
religion,
sex,
age
or
mental
or
physical
disability.
The
criterion
in
order
to
obtain
tax
benefits:
(1)
the
applicant
has
to
be
poor,
and
(2)
the
children
must
be
residing
with
the
applicant.
It
is
the
Applicants’
position
that
they
are
being
discriminated
against
because
they
are
poor.
Parents
with
means
would
be
able
to
afford
to
rent
a
house
and
would
have
a
greater
advantage
in
a
protection
application
than
the
Applicants,
who
are
no
longer
able
to
rent
premises.
In
my
judgment,
there
is
no
discrimination
with
these
Applicants.
They
are
entitled
to
the
Child
Tax
Benefit
but,
the
same
as
every
other
person,
they
have
to
meet
two
criteria:
(1)
poverty
and
(2)
that
the
children
reside
with
them.
There
is
no
dispute
that
the
Applicants
can
meet
the
first
criteria.
It
is
the
second
criteria
that
is
in
dispute.
The
children
do
not
reside
with
them.
If
the
children
do
reside
with
them,
then
they
are
entitled
to
the
benefit
and
there
is,
in
my
judgment,
no
discrimination.
Entitlement
to
the
Child
Tax
Benefit
is
based
upon
an
objective
factual
determination
of
whether
the
person
is
wholly
or
substantially
maintaining
the
child.
The
determination
does
not
relate
to
the
prohibitive
grounds
of
discrimination
provided
for
in
s.
15
of
the
Charter.
Section
7
of
the
Canadian
Charter
of
Rights
and
Freedoms
provides
that
everyone
has
the
right
to
life,
liberty
and
security
of
the
person,
that
right
not
to
deprived
thereof
except
in
accordance
with
the
principles
of
fundamental
justice.
There
is
no
authority
that
I
am
aware
of
that
economic
rights
such
as
Child
Tax
Benefits
are
protected
by
s.7
of
the
Charter.
The
complaint,
as
I
understand
it,
of
the
Applicants
is
that
they
have
no
right
of
appeal
when
the
Child
Tax
Credit
was
taken
from
them.
There
is
a
denial
of
natural
justice
when
they
are
prevented
from
having
a
hearing
and
there
is
no
provision
for
appeal.
In
my
judgment
the
right
to
the
Child
Tax
Benefit
is
provided
for
in
the
Income
Tax
Act
so
the
proper
venue
is
to
make
the
application
to
the
tax
court
which
has
jurisdiction
over
federal
income
tax
matters.
Conclusion:
If
the
Applicants’
position
is
correct
that
the
children
are
still
residing
with
them,
that
they
are
still
responsible
supervising
and
maintaining
the
children
then
they
would
be
entitled
under
the
welfare
provisions
to
apply
for
and
obtain
welfare
for
those
children.
The
application
to
be
named
litigant
guardians,
in
my
judgment,
is
deficient.
The
appropriate
affidavit
has
not
been
filed.
Secondly,
it
is
not
the
children
that
are
entitled
to
the
payment
under
the
Child
Tax
Credit,
it
is
the
individuals
who
maintain
the
children
who
are
entitled
to
that
tax
benefit.
Thirdly,
there
is
a
court
order
within
the
Application
appointing
a
Children’s
Lawyer
to
represent
the
children,
namely,
Ann
Farquharson.
For
these
reasons,
the
Application
should
be
dismissed.
This
a
novel
application.
There
should
be
no
costs.
Application
dismissed.
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