G.B. v. Family and Children’s Services of the Waterloo Region, 2008 CFSRB 39

CHILD AND FAMILY SERVICES REVIEW BOARD

G.B.

v.

Family and Children’s Services of the Waterloo Region

REASONS FOR DECISION ON JURISDICTION

Date: May 7, 2008

Citation: 2008 CFSRB 39

Indexed as: G.B. v. F&CS of the Waterloo Region (CFSA s.68)

Related Decisions: Reasons for Decision on Merits – G.B. v. Family and Children’s Services of the Waterloo Region (CFSA s.68), 2008 CFSRB 60

1This is an application by G.B. under section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”). The Child and Family Services Review Board (the “Board”) was asked to review complaints made by G.B. (the “Applicant”) about the Children’s Aid Society of the Regional Municipality of Waterloo (the “Society”). The Applicant specifically complains that the Society failed to respond to his complaint made the […] day of September, 2007 within the timeframe required by regulation. As well, the Applicant generally complains that he was not given the opportunity to be heard or to obtain reasons in respect of decisions made by the Society that affected his interests. The Society took the position that there was no jurisdiction for the Board to deal with any aspect of the complaint and that all matters had been before the Court or otherwise were outside Board jurisdiction. The Applicant disagrees with this position.

BACKGROUND

2The Society became involved with this family in 2006 and filed a Protection Application and Motion for interim relief on April […], 2006. A series of interim Orders were made by the Court which resulted in a withdrawal of the Protection Application by the Society on September […], 2007. During the time of Society involvement, the children resided with their mother and interim Orders were made by the Court in respect of access by the Applicant and other matters.

3The Applicant had a number of concerns with respect to services sought and received from the Society, but understood that his complaints would not be addressed by the Society under the internal complaint review procedure until such time as the Court proceeding was completed. The Applicant submitted a written complaint to the Society on September […], 2007 and made this application to the Board on January 15, 2008 at a time when the Applicant believed the Society had been unresponsive to his concerns. A response to the Applicant’s complaints was made in writing by the Executive Director, P.R., on January […], 2008, just two days after the application was filed with the Board.

Jurisdiction

4The Society proceeded first with jurisdiction arguments and the Applicant responded. The Society took the position that all issues raised by the Applicant had been decided by the Court or were before the Court and that the entire application should be dismissed based upon subsection 8(a) of section 68.1 which provides as follows:

(8) The Board shall not conduct a 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.

5Counsel for the Society argued that the Settlement Conference of August […], 2006 was part of a Court proceeding and as such, any complaint relating to that process was before the Court. As well, counsel put forward the proposition that a Settlement Conference is a private and confidential forum and provided authority for this position.

6With respect to the complaints raised by the Applicant related to the assessment process with the Court Clinic (conducting the Court ordered parenting capacity assessment), counsel again raised confidentiality considerations. It was submitted that this aspect of the complaint was outside of the Board’s jurisdiction and the Society relied upon the provision contained in section 54(8) of the Act which provides that an assessment report made under section 54 is not admissible into evidence in any other proceeding with some limited (and inapplicable) exceptions. The specific provision of the Act reads as follows:

(8) The report of an assessment ordered under subsection (1) is not admissible into evidence in any other proceeding except,

(a) a proceeding under this Part, including an appeal under section 69;

(b) a proceeding referred to in section 81;

(b.1) a proceeding under Part VII respecting an application to make, vary or terminate an openness order; or

(c ) a proceeding under the Coroners Act,

without the consent of the person or persons assessed.

7It was also submitted by counsel that the three headings of relief sought by the Applicant as outlined in the Pre-Hearing Report are beyond the jurisdiction of the Board. Counsel dealt with the multiple allegations contained in the five page complaint in some detail.

8The Applicant responded by submitting that he was not challenging any of the Orders made by the Court or challenging the results of the assessment made by the Court Clinic, but was primarily concerned with the Society consistently not responding to him. The Applicant felt that he had been pursuing his complaints for eighteen months and had not been heard and had not been receiving reasons for decisions made by the Society affecting his interests. The Applicant submits that the behaviour and attitude of the Society staff towards him was adversarial and not helpful. The Applicant took the position that none of his complaints were before the Court and that this Board had jurisdiction to address all concerns raised in the application. The Applicant indicated that he was simply seeking an appropriate investigation and response by the Society.

CONCLUSION

9Having reviewed all of the documents and written materials filed by the parties, and having heard submissions from both parties, it is the decision of the Board that there is no jurisdiction to proceed with the following complaints:

1. The concerns raised with respect to B.H., Supervisor, in the preamble to the complaint and in the first paragraph are beyond the jurisdiction of the Board. These complaints were made before November 30, 2006 and resulted in a meeting between the Applicant and J.A. on October […], 2006 to address these concerns. The Applicant understood that J.A. was B.H.’s supervisor. This complaint was addressed by the Society under the old internal complaints process and the Applicant cannot bring this complaint directly to the Board.

2. The complaint in paragraph one with respect to Society legal counsel (Tanya Harper). Tanya Harper was not providing any service to the Applicant and therefore, no complaint can be made under section 68.1.

3. The complaint made in paragraph one with respect to the psychiatric opinion of the Applicant’s psychiatrist regarding the comments made by Tanya Harper (Society legal counsel) and B.H. challenging his qualifications. The weight to be attached to this psychiatric opinion was a matter before the Court and subject to determination in that forum.

4. The concerns raised by the Applicant in paragraph two with respect to particulars (and the origins of this information) as contained in the report from the Court Clinic. This was not a service being provided by the Society to the Applicant but rather, was a report to the Court from an outside provider. As well, the subject matter of the report was before the Court and could have been addressed by the Applicant in that forum.

5. The access considerations raised by the Applicant in paragraph four were before the Court and are beyond the jurisdiction of this Board except to a limited extent as referenced later in this decision.

10It is the decision of the Board that there is jurisdiction to proceed with the following complaints at an oral hearing:

1. The complaint by the Applicant that the Society did not respond within the timeframe required by regulation. The Board will consider the written complaint made by the Applicant on September […], 2007 in the context of the requirements of Ontario Regulation 494/06 made under the Act.

2. The complaint made by the Applicant in paragraph two that when dealing with the case worker, K.C., the Applicant was not heard when he had concerns about the services he was receiving. The specific aspect of this complaint to be addressed at hearing is limited to the following allegation:

“In dealing with K.C., I encountered extreme hostility. When I was first introduced to him, I asked him many of the same questions above and he indicated he didn’t have time to look into the matter. When I spoke to him a second time (via telephone) he told me that he “didn’t have time” and that he was “pissed off” at me and he would “hang up” on me which he did. Clearly, the message was received at this point – he had no interest in hearing my side of the story.”

3. The complaint made by the Applicant in paragraph three that when documentary evidence was presented to the Intake Worker, L.D., to contradict the allegations made by P.K. (mother), that the Applicant was not provided with any explanation as to why these materials were not used or relied upon by the Society, and the Applicant complains that he was not heard in this regard.

4. The complaint made by the Applicant in paragraph four that he was not given an explanation as to why it took twelve months for the Applicant to have weekend access. The Board will deal only with the allegation of lack of explanation and not with any part of the larger complaint relating to access.

Procedural Considerations

11This matter is to be set for a hearing on the merits for a full day, limited to the four specific areas detailed above wherein the Board has jurisdiction. The Case Coordinator will contact the parties to arrange for a mutually available hearing date; and the Case Coordinator has been given particulars of availability for the parties as provided to the Board on April 14, 2008.

12As indicated in the Pre-Hearing Report, a list of witnesses must be submitted in writing to the Board and to the other party at least ten days prior to the hearing and each party is responsible for having any required witnesses present for the hearing. If either party requires a Summons to Witness they may be obtained from the Case Coordinator, but each party is responsible for service of the Summons and for providing any required conduct money. Witnesses may only be called regarding the matters which the Board is allowing to proceed to hearing. At the hearing, the Applicant will proceed first and the Society will respond.

John Gates Presiding Member

Deborah Simon Panel Member

Gregory Price Panel Member