CHILD AND FAMILY SERVICES REVIEW BOARD
J.P.
v.
Prescott-Russell Services to Children & Adults
REASONS FOR DECISION ON JURISDICTION
Indexed as: J.P. v. Services to Children & Adults Prescott-Russell (CFSA s.68)
Related Decisions: Reasons for Decision on Merits - J.P. v. Prescott-Russell Services to Children & Adults (CFSA s. 68), 2008 CFSRB 31
INTRODUCTION
1On October 4, 2007, the Child and Family Services Review Board (the “Board”) received an application from the Applicant regarding a complaint against the Child and Family Services of Prescott-Russell (the “Services”) 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 Services discriminated against him by, among other things, improperly requiring that his access visits be supervised, and refusing to give him contact information for his two adolescent children.
2On October 10, 2007, the Board determined that the Applicant’s application was eligible for review. After reviewing the Services’ summary reply, the Board determined on October 31, 2007, that an oral hearing would be held.
3The Services argued in a preliminary motion on December 14, 2007 in Ottawa that the Board did not have jurisdiction to hear the Applicant’s complaint on the grounds that all of the matters raised by him are before the Court, as described in s.68.1(8) of the Act.
4The Board must decide whether the subject matter of the Applicant’s complaint is before the Court.
5The Pre-Hearing Conference in this matter was conducted in the French language. The Motion Hearing was argued in English by outside counsel for the Services, on consent of the Applicant. While the Applicant and the Services’ in-house counsel also spoke in French during the proceedings, they were equally comfortable in English. For this reason, these Reasons for Decision are written in English.
6Well into the hearing, it became apparent that the Applicant was recording the proceedings. The Services objected and the Applicant agreed to discontinue the recording and erase the tapes.
BACKGROUND
[7] The Applicant is the father of five children. His complaint with respect to supervised visits relates to the two youngest: C.P. (aged 8) and M.P. (aged 10). His complaint with respect to contact information relates to F.P. (aged 16) and F.C.P. (aged 14). There are no complaints that involve the eldest son, S.P. (aged 17).
8The Services have been involved with this family in varying capacities since August 2001. The history of the case described in the Services’ submissions dated December […], 2007, and not disputed by the Applicant, notes the following. The Applicant had supervised custody of the children from December 2001 until May 2002. On May […], 2002, the Court ordered on a temporary basis that the children be placed under the mother’s supervised care, with access to the Applicant according to the wishes of the children, and supervised according to the discretion of the Services. On February […], 2007 F.P. and F.C.P. were placed under the care and custody of the Services given that the mother had been experiencing difficulties with them. They did not want to be placed with their father. A protection order was issued by the Court on May […], 2007. On various occasions since February 2006, the Applicant has called the Society to complain that he could not reach his children. While the children can contact the Applicant whenever they wish, F.P. and F.C.P. have asked that the Society not provide their father with contact information. In November 2007, the Services filed a status review application with the Court, and asked for a restraining order against the Applicant.
The Complaints
9The Applicant’s application states that the subject of his complaint is that the Services abuse its authority and systematically discriminate against him. He gave the following six examples:
The Services imposed supervised access during summer 2002;
The Services refused to provide contact information for F.P. and F.C.P. during the summer of 2006;
In September 2006, the Services did not release information regarding dates of placement for F.P. and F.C.P. in foster homes, and information on amounts paid by the mother to the Services;
Concerns about the mother’s behavior in blocking access to C.P. and M.P. in the fall 2006, including the Services’ involvement in the mother getting a telephone answering machine;
The May […], 2007 request by the Services that the Court order supervised visits with F.P. and F.C.P.;
The Services refused to give the Applicant access information about F.P. and F.C.P. in the summer 2007.
10The Applicant agreed at the December 19, 2007 hearing that issue no. 3, his complaint regarding withholding information on the amount of money the mother paid for the placement of F.P. and F.C.P., is confidential information which the Services has no right to divulge. This issue was therefore withdrawn.
[11] The pre-hearing conference Endorsement Sheet, issued by the Board following a pre-hearing conference conducted on November 16, 2007, articulated the Applicant’s concerns as follows:
Points en litige
[Applicant] ne conteste pas le prolongement du placement de F.P. et de F.C.P. Il se plaint d’être l’objet de harcèlement de la part des Services, que ces derniers limitent son accès aux enfants en le tenant éloigné et en ne le consultant pas face aux décisions concernant ses enfants; qu’ils protègent inconditionnellement la mère; de l’incapacité des intervenants à discerner les vrais problèmes et d’une mauvaise gestion du dossier. Bref, il perçoit que les Services ne voient pas au meilleur intérêt de ses enfants.
MOTION
12On December 19, 2007, the Board heard the Services’ motion for a determination as to whether the Board has jurisdiction to review this application. The Services was represented by John Page, outside counsel, and Sylvie Godin, in-house counsel. The Applicant represented himself. The Services’ position regarding the Applicant’s complaint is that it encompasses matters which are before the Court and as such, does not fall under the Board’s jurisdiction to review.
Section 68.1(8)(a) of the Act reads as follows:
The Board shall not conduct a review of a complaint under this section if the subject of the complaint is an issue that has been decided by the Court or is before the Court.
13The Services argue that by taking either an overview approach, or by examining each of the points in the complaint letter, the Board should conclude that the matters are before the Court and therefore are not matters that the Board can hear, by virtue of Section 68.1(8)(a) of the Act.
14John Page first argues that the real subject of the Applicant’s complaint is the Services’ conduct with respect to the Applicant’s access to his children. He argues that access and its exercise are currently before the Court through a pending status review application, filed by the Services with the Court on November […], 2007. The Services argues that access issues must be dealt with by the Courts, rather than by the Board, in order that all affected persons may be Parties, and be dealt with in a balanced manner.
15Secondly, John Page argues that, should the Board find it necessary to consider each of the points in the complaint letter, they have all either been determined by the Court, are currently before the Court, or are outside the Board’s jurisdiction. Specifically:
A protection decision issued May […], 2002 by the Superior Court of Justice includes an order that access is to be supervised at the discretion of the Services.
According to the terms of the divorce rendered by Quebec Provincial Superior Court on February […], 2006, all five children were awarded to the mother’s custody with right of access to the Applicant. Access is to be decided on consent between the parents and with the agreement of the children.
The Superior Court of Justice, Family Division, on May […], 2007 issued a decision on consent of all Parties. It ordered that F.P. and F.C.P. may see their father according to their wishes. At this time, both children refuse to see their father and have asked the Services not to give him their contact information. The Applicant did not obtain a Court order that the Services divulge this information.
There is currently an application before the Superior Court, dated November […], 2007, for a restraining order against the Applicant.
There is a temporary Court order dated November […], 2007, and a status review application currently before the Court, which include issues related to telephone access to the younger children;
the Applicant’s statement of defense in those proceedings, dated November […], 2007, directly questions the “competence” of the Services’ management of the file.
16The Applicant argues that the Board has jurisdiction to hear all portions of his complaint, other than regarding confidential financial information, as noted above. His arguments relating to each issue are summarized below.
Issue No. 1
17The Applicant argues that the 2002 Court decision does not order that visits with the Applicant be supervised. Rather, he argues, supervision was imposed unilaterally by the Services. The Applicant argues that he made a complaint about the imposition of supervision at the time, to the Director of the Services, L.M. He submits that as a result of that complaint, the case worker “was removed from the case” and the Applicant was told that “supervised visits do not apply in your case”. The Services deny the Applicant’s version of events, and point out that the case worker left due to a maternity leave.
Issue No. 2
18The Applicant argues there was no court order restricting him from receiving contact information about his children at the time he filed his complaint with the Board. Rather, the Services’ application for a restraining order was added Nov. […], 2007; some six weeks after his complaint was filed with this Board. The Applicant questions whether the content of the Court application may have been designed to prevent him from complaining to the Board.
Issue No. 3
19The Applicant agrees to withdraw this issue.
Issue No. 4
20The Applicant argues that his ex-wife’s behavior in the fall of 2006 is not a matter before the Court. The Applicant believes the Services is “covering up” her behavior. He cites the example of one occasion when he informed the Services about what he considered to be significant behavioral problems by his wife, but it ended up being considered a “personality conflict” between himself and the Services.
21He raises the issue of his ex-wife using a telephone answering machine to screen his calls, to prevent him from talking to C.P. and M.P. The Applicant complains that the Services counselled her to do so, which indicates it was taking her side. He feels he is being pushed aside by the Services, and that his concerns have no value. The Applicant states that he complained previously to the Services that his ex-wife was not allowing C.P. and M.P. to answer the phone. He complains that the Services did not involve him or try to mediate the situation, but simply advised the mother to obtain an answering machine.
Issue No. 5
22The Applicant believes the Services had no good reason to ask for his visits with F.P. and F.C.P. to be supervised. It makes no sense for the Services to ask for supervised visits with his adolescent children, F.P. and F.C.P., and not for the two youngest, C.P. and M.P. This is evidence, he argues, that the Services are harassing him.
Issue No. 6
23The Applicant argues that there was no court order during the summer of 2007 to restrict him from receiving contact information about his children. He complains that he was being kept away, and not allowed to offer activities to his children.
24The Applicant sees the Services’ application for a restraining order as discrimination and harassment. He believes that the decision of the Services to include the two youngest children in the current review before the Court is also harassment.
25In his reply, John Page submits that the timing of the status review application had nothing to do with the complaint, but was a mandated six-month review following an earlier Court decision. Counsel for the Services submits that the complaint regarding the addition of the youngest children to the most recent application is a new complaint that was not included in the original application.
26He submits that the May […], 2007 order by the Court deemed the children in need of protection because the mother was not protecting them. Therefore, the mother’s conduct is clearly before the Court with respect to all the children.
27The Services agree that there was no court order prior to Nov. […], 2007 preventing the Applicant from getting contact information about his children. Rather than a court order, the Services refused to give him this information due to the wishes of the children.
ANALYSIS
28As an overview, the Board recognizes the limits of its authority pursuant to Section 68.1(8) of the Act. Section 68.1(8) clearly limits the Board’s jurisdiction where the subject matter of the complaint, as opposed to the parties, is before the Court. The matter before the Court in this case is access and the best interests of the children. What the Board may hear is a complaint respecting the relationship between the Applicant, as a client, and the Child and Family Services of Prescott-Russell, as a service provider. The Board does not need to hear from any party other than the Applicant and the Services in order to determine whether the Services met its statutory responsibilities under Section 68.1. This complaint cannot be disposed of simply by regarding it as an “access” issue.
29Whether the Board has jurisdiction to consider the Applicant’s general complaint that he has been “harassed” and “discriminated against”, will depend on its jurisdiction to consider his complaints about various incidents leading to his overall feeling of harassment.
Issue No. 1 - The Services imposed supervised access during summer 2002
30The Board agrees that it has no jurisdiction to hear complaints with respect to the Applicant’s terms of access with his children. These have been clearly ordered by the Court and, as noted by counsel for the Services, the Applicant would have to return to Court to vary the access order, if he so wishes.
31In theory, the Board would have jurisdiction to consider whether the Services offered the Applicant an opportunity to give his views on supervised access, and whether the Services gave him reasons for its decision to impose supervised access. However, the Board finds this is not a part of the Applicant’s current complaint. It appears he had discussions with the Services in this regard in 2002, and was satisfied with the outcome at that time. The Applicant raises the issue in his current complaint, in the Board’s view, simply as an early example of “harassment” by the Services. The Board will not hear evidence on the issue of supervised access in 2002.
Issue No. 2 - The Services refused to provide contact information for F.P. and F.C.P. during the summer of 2006
32Counsel for the Services recognized that there was no court-ordered restriction on the Applicant contacting F.P. and F.C.P. in 2006. The court orders which existed at the relevant time, and continue currently, are that access is according to the children’s wishes. F.P. and F.C.P. had instructed the Services not to give their contact information to the Applicant.
33While there was no court order at the time the application with this Board was filed, there is nonetheless now an application before the Court to restrict the Applicant’s direct contact with F.P. and F.C.P. to organize visits with them. The Application is for:
une ordonnance temporaire, sous toute réserves, afin que soit accordés au père des droits de visites concernant F.P., F.C.P., M.P. et C.P. selon leurs désirs.
une ordonnance temporaire de ne pas faire en vertu de l’alinéa 80(1) de la Loi afin que le père ne contacte pas directement les enfants pour avoir des visites avec eux. De plus, le père ne devra pas se rendre à la résidence de la mère ou aux foyers d’accueil où sont placés F.P. and F.C.P. sans l’autorisation des Services. Le père devra respecter les plans de visites établis suite à une entente mutuelle entre les enfants, le parent visité et les Services. Le père devra communiquer avec les Services s’il veut des visites supplémentaires que celles prévues dans le plan de visites établis.
34In the context of that court proceeding, the Services’ refusal to provide contact information to the Applicant for F.P. and F.C.P. will certainly be argued. The issue of whether the Services appropriately refused to disclose this information, or whether the Applicant should be able to contact his children directly, is therefore before the Court. The Board has no jurisdiction over this matter.
Issue No. 3 – Withdrawn
Issue No. 4 - Concerns about the mother’s behavior in blocking access to the children in fall 2006, and the Services’ involvement in her obtaining an answering machine
35The Services has no control over the mother’s cooperation with court-ordered access. Any complaint against the mother’s behavior in this regard, then, is improperly addressed to the Services, and by extension the Board. This is a question of enforcement of a Court order that can only be addressed by the Court.
36Nonetheless, the Services admitted that it is playing a facilitator role with respect to the parents’ access. The procedure has been that the Applicant contacts the Society when he wishes to access his children, and the Society contacts the children to see if they consent. The Applicant’s complaint stems from his belief that the Services is doing little to encourage the boys to consent to a visit with their father. Although they are adolescents, they remain children and do not perhaps process all the interests at stake in parental visits, including their own. This aspect of the complaint is not about the Services’ decision to keep contact information away from the Applicant, nor about the court-ordered provision that access is according to the desires of the children. Rather, it relates to the service of facilitation of visits, provided by a children’s aid society to a client, which is within the jurisdiction of the Board.
37The Board finds that the hearing may proceed on the merits, into the following complaint:
- that the Services has failed to comply with Clause 2(2)(a) of the Child and Family Services Act which states, “Service providers shall ensure that children and their parents have an opportunity where appropriate 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”.
38The services provided by the Child and Family Services of Prescott-Russell is the facilitation of the Applicant’s visits with F.P. and F.C.P., including efforts made to encourage the children to agree to the visits.
39Given the remedies available to the Board, a hearing into this matter will not engage in a comparison of the treatment afforded the Applicant when compared to his ex-wife. The Board will limit itself to considering whether the Services has fulfilled its obligations under s.68.1 of the Act. The remedies available to the Board are the following:
After reviewing the complaint, the Board may,
(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;
(b) order the society to provide a response to the complainant within a period specified by the Board;
(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;
(d) order the society to provide written reasons for a decision to a complainant;
(e) dismiss the complaint.
Issue No. 5 - May […], 2007 request by the Services that the Court order supervised visits with F.P. and F.C.P.
40This complaint relates directly to issues that were argued before the Court, in an application to decide access conditions. Whether the Services properly requested that access be supervised, and the reasons for it to do so, are matters before the Court. As a result, the Board has no jurisdiction under s.68.1(8) to consider this portion of the complaint.
Issue No. 6 - The Services refused to give the Applicant access information about F.P. and F.C.P. in summer 2007
41For the same reasons listed under Issue No. 2, the Board has no jurisdiction to hear this aspect of the complaint.
CONCLUSION
42The Board grants the motion of the Services regarding this complaint with respect to issues 1, 2, 3, 5, and portions of 4, and finds it does not have jurisdiction to hear those issues.
43The Board denies the motion with respect to part of issue no. 4, and determines that it does have jurisdiction to hear the complaint regarding the Services’ facilitation of the Applicant’s visits with his adolescent children, F.P. and F.C.P.
Heather Gibbs
Board Member
Dated at Toronto, Ontario this 31st day of January, 2008.