CHILD AND FAMILY SERVICES REVIEW BOARD
M.D.
v.
Children’s Aid Society of Northumberland
REASONS FOR DECISION ON JURISDICTION
Date: May 11, 2007
Citation: 2007 CFSRB 15
Indexed as: M.D v. CAS of Northumberland (CFSA s.68)
Related Decisions: Reasons for Decisions on Merits – M.D. v. CAS of Northumberland (CFSA s.68), 2007 CFSRB 37
1The Applicant filed an application with the Child and Family Services Review Board (the “Board”) on February 22, 2007 pursuant to section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The Applicant complained that the Children’s Aid Society had refused to proceed with his complaint, and that the Children’s Aid Society had failed to provide him with reasons for a decision and this affected his interest.
2The application was determined to be eligible on March 7, 2007, and a Pre-hearing conference was held on April 4, 2007.
3The application was clarified at the Pre-hearing conference, and the results of the Pre-hearing conference were recorded in the Pre-hearing Endorsement Sheet. At the Pre-hearing conference, the Respondent, the Northumberland Children’s Aid Society (the “Society”) identified that the Society would challenge the jurisdiction of the Board.
4The Society identified that it would be using subsection 68.1 (8) of the Act to argue that this case is before the Ontario Court of Justice, and that the Board does not have the jurisdiction to hear the complaint.
5In addition, the Society would argue that the Applicant submitted his application to the Board before he had submitted a written complaint to the Society, and thus, it was impossible for the Society to have refused to proceed with a formal complaint pursuant to subsection 68.1(4)1 of the Act.
6It was agreed that the Board would hear the Society’s motion on jurisdiction first, and depending on the decision, the Board would reconvene to hear the application.
MOTION
7MOTION
8The Board heard the Society’s motion in [ ] on April 25, 2007. At the hearing, the Applicant represented himself. The Society was represented by counsel.
9The Society provided new evidence, relevant sections of the Children’s Law Reform Act, and relied on its evidence package submitted earlier, which consisted of the Application Record of the Society, its Notice of Motion, dated April […], 2007, and an Affidavit of S.B., Child Protection Worker Supervisor dated April […], 2007.
10The Applicant relied on his Affidavit of April […], 2007. He also submitted a CD which was not relied on for the Motion because it dealt with the actual complaint as opposed to the Board’s jurisdiction to hear the complaint.
11The Applicant relied on subsections 68.1(4) 1 and 68.1(4) 5 of the Act in support of his application.
68.1(4) The following matters may be reviewed by the Board under this section:
Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68 (1) as required under subsection 68 (2).
Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
12The Society argued with regard to 68.1 (4) 1 that the Applicant had not initiated a formal complaint when he submitted his application to the Board. Thus, it was impossible for the Society to have refused to proceed with a complaint.
13In addition, the Society argued that the Board is without jurisdiction to proceed because of the application of subsection 68.1 (8) (a) which reads as follows:
s.68.1 (8) The Board shall not conduct the 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.
14For the application of these decisions, court is defined in the Act as follows:
Court means the Ontario Court of Justice or the Family Court of the Superior Court of Justice.
ANALYSIS
15The issue before this Panel is whether the Applicant has the right to complain directly to the Board, and whether the complaint may be heard, notwithstanding the fact that there is a related custody and access matter before the Family Court of the Superior Court of Justice (the “Court”).The Applicant submitted that:
i. He proceeded with a complaint to the Board because he was not satisfied with the actions of the Northumberland Children’s Aid Society, and no one there provided him with information regarding an internal Society complaint procedure.
ii. He was concerned about the safety and well being of his children. These were not matters for the Court, not issues of custody and access, but rather matters for the Children’s Aid Society related to the safety and protection of the children. There was evidence presented to the Society regarding his children that should have caused concerns, namely:
a. The Applicant believes that his children are at risk because their mother is a drug user, because she has written a suicide note, and because the mother’s boy friend has expressed his concerns regarding the children’s safety to the Applicant.
b. The Society wrote a letter to the children’s mother indicating that she should not use drugs while in a care giving role for the children.
iii. The Applicant believes that the children could be at imminent risk and that this is not a matter that can wait for a custody and access hearing at Court.
iv. The Applicant differentiated between his concerns for the children’s safety while in the care of their mother and the issue of custody which may take many months to determine.
v. The Society has not provided him with reasons for its decision that the Applicant’s children are not at risk and why it proceeded to close the protection file.
16Counsel for the Society submitted that:
i. Only the matter related to subsection 68.4, may be germane: that the Society did not provide the Applicant with a copy of its complaint procedure when he requested one and the Applicant was, therefore, unable to file a formal complaint. Counsel described the efforts made by the Society subsequent to February […], 2007 to provide the Applicant with the complaint procedure. Counsel submitted that as the Applicant had not initiated a formal complaint when he submitted his application to the Board, it is impossible for the Society to have refused to proceed with the complaint.
ii. There is currently a matter before the Court to determine the mother’s ability to parent the children. The Court process began in April, 2006 and the question of custody was brought before it in June, 2006. At that time, the children were in the custody of their mother, with access to their father.
iii. The Court is required to determine who is best suited for custody. The Applicant has reported concerns regarding the safety of the children. Because of these concerns, he decided not to return the children to their mother in early February, 2007. Court proceedings were then held on February […] and […], 2007 and an Order was made providing for the return of the children to their mother, hair follicle analysis for the parties, and assessment by the Kawartha Family Assessment Services. The parties are apparently proceeding with this assessment.
iv. The purpose of section 68.1 is to ensure that the Board is not caught up in custody and access issues. It is the role of the Society’s social workers to determine if the matter before it is a child protection issue. A triage system exists within the Society to assist in making this determination. The Applicant made his concerns known; the social worker investigated; conclusions were drawn. The Society has determined that this matter should be dealt with by the Court. From the Society’s perspective, it has followed the mandate of the Act.
17Counsel therefore submitted that this complaint is not within the jurisdiction of the Board as it is a matter currently before the Court.
THE DECISION ON THE MOTION:
18The Board finds that the Applicant has the right to make a complaint directly to the Board under section 68.1 (1)(a) where the matter is described in section 68.1 (4), that is, a complaint against the Society regarding its procedures.
19The Board finds that the Applicant’s complaint that the Children’s Aid Society failed to proceed with his complaint cannot proceed before this Board because the Applicant did not file a complaint with the Society.
20The Board finds that the Applicant’s complaint that the Society failed to provide the Applicant with its reasons as to why his children are not at risk can proceed before the Board because it is not an issue that has been decided by the court or is before the court for the following reasons:
i. In this case, the issue to be determined is whether the Children’s Aid Society has failed to provide the complainant with reasons for its decision that his children are not at risk. This affects the complainant’s interests.
ii. It is the Board’s opinion that this issue is not before the Court on the custody and access application.
iii. It is also the Board’s opinion that child protection issues are different from custody and access issues in that the issues of safety and protection for children require a more urgent and timely response, and fall under the responsibility of the Children’s Aid Society, and cannot await determination in a custody and access proceeding that may take months to resolve.
iv. The Board is therefore of the opinion that the Applicant has the right to have his application heard under subsection 68.1(4)5.
21For these reasons, the Board denies the motion of the Society, and unless a settlement is reached between the Applicant and the Respondent, the Board determines that it will proceed to hear the Application relating to the complaint that the Society has failed to explain to the Applicant why it decided the Applicant’s children are not at risk.
Celia Denov
Board Member
Chairperson
John Gates
Board Member
Fizul Sima
Board Member
Dated at Toronto, Ontario this 11th day of May, 2007.