R.DJ & M.DJ v. Children’s Aid Society of Oxford County, 2008 CFSRB 62

CHILD AND FAMILY SERVICES REVIEW BOARD

R.DJ & M.DJ

v.

Children’s Aid Society of Oxford County

REASONS FOR DECISION ON JURISDICTION

Date: June 24, 2008

Citation: 2008 CFSRB 62

Indexed as: R.DJ & M.DJ v. CAS of Oxford County (CFSA s.68)

1This is an application by R.DJ and M.DJ (the “Applicants”) under section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”). The Child and Family Services Review Board (the “Board”) was asked to review complaints made by the Applicants about the Children’s Aid Society of Oxford County (the “Society”). The Applicants specifically complained that the Society failed to respond to their written complaint dated the […] day of September, 2007 within the timeframe and otherwise as required by regulation. As well, the Applicants generally complain that they were not given the opportunity to be heard or to obtain reasons in respect of decisions made by the Society that affected their 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 were before the Court or otherwise outside of the jurisdiction of this Board. The Applicants disagree with this position.

BACKGROUND

2The Society became involved with this family when the eight youngest children of the family were apprehended by the Society on the […] day of February, 2006. These children have not resided with the Applicants from that time to the present. On August […], 2006, the children were found to be in need of protection and there is a Status Review proceeding currently before the Court with a trial scheduled for September […], […], […] and […], 2008. It is the position of the Society that all eight children should be made Crown Wards. The Applicants are opposed to that disposition and wish to have the children return to live with them. There are four older children who are not involved as they are older and outside the mandate of the Society.

3The Applicants had concerns with respect to the legal representation of the children through the Office of the Children’s Lawyer and with respect to services sought and received from the Society. They used one letter of complaint to address all of these concerns. Sometime after September […], 2007 (perhaps as late as the end of October), a complaint letter was delivered to the Society setting out all of these concerns and this letter was directed to the attention of the Executive Director of the Society, C.S. Delivery of this letter to the Society resulted in a meeting between the Applicants and a Society Manager, C.W. It is the evidence of the Applicants that they were promised a response in writing and that such a response never arrived. The Applicants followed up with the case worker, L.L., and ultimately brought this application on March […], 2008 in the absence of any response from the Society for over four months.

JURISDICTION

4The Society proceeded first with its jurisdiction arguments and the Applicants responded. The Society took the position that the correspondence of September […], 2007 was not a complaint to the Society and, accordingly, a formal response from the Society was not required. In addition to the issue of whether or not the letter of September […], 2007 from the Applicants was a complaint to the Society within the meaning of section 68(1), there were ten other issues identified in the pre-hearing report of May 8, 2008 which the Applicants sought to have determined by the Board. All parties confirmed that the pre-hearing report accurately summarized the issues to be addressed by the Board in this application and each one of these issues was considered separately in the jurisdiction hearing. The failure of the Society to proceed with the written complaint is the first complaint by the Applicants and the other ten issues are those listed in the pre-hearing report which are summarized as follows:

(i) a Society worker has tampered with a court document;

(ii) a Society worker was rude when replying to questions;

(iii) there is excessive monitoring of words and actions during supervised visits with the children;

(iv) the Society made 75 false statements on a court document;

(v) the therapy sessions arranged by the Society for the children are not satisfactory;

(vi) the Society ignored attempts by the Applicants to improve themselves;

(vii) the Society ignored plans to make the home more suitable for the children;

(viii) the Society changed a 6-month supervision order into a 12-month supervision order;

(ix) home visits that were intended to begin on October, 2006 did not occur; and

(x) the Society is attempting to have the eight children declared Crown wards (even though the four oldest children are old enough that they are not returning to the family home).

5As well, the Applicants had indicated in the application that the Society had inaccurately recorded information in their file. The Applicants confirm that this complaint was not included in their written letter of complaint and has never been through the Society’s internal complaint review procedure. The Applicants were advised by the Board that there is no jurisdiction to proceed with this complaint without the internal complaint review procedure taking place first pursuant to section 68(5) of the Act.

6The Society took the positions that there had been no prior written complaint by the Applicants and that otherwise all issues raised by the Applicants 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.

7The Applicants submit that all complaints are properly within the jurisdiction of the Board and should be addressed at a hearing on the merits.

CONCLUSION

8Having reviewed all of the documents and written materials filed by the parties, and having heard evidence from the Applicants and submissions from both parties with respect to jurisdiction:

1. The Board finds that there is jurisdiction to proceed with the complaint that the Society failed to respond to the written complaint made by the Applicants as required by Ontario Regulation 494/06 (the “Regulation”). The Board will consider the written complaint made by the Applicants dated September […], 2007 in the context of the Regulation.

2. The Board finds that there is no jurisdiction to hear the complaint that a Society worker has tampered with a Court document. Conduct of this nature is entirely within the purview of the Court within the meaning of subsection (8)(a) of section 68.1 of the Act.

3. The Board finds that there is jurisdiction to proceed with the complaint that a Society worker was rude to the Applicants when replying to questions. This is a new allegation by the Applicants and not a matter that is before the Court. The Board will hear this complaint pursuant to subparagraph (4) of section 68.1(4) of the Act.

4. The Board finds that there is limited jurisdiction to deal with the complaint made by the Applicants in respect of supervised access visits pursuant to subparagraphs (4) and (5) of section 68.1(4) of the Act. The Board’s ability to hear this complaint is limited to considering whether or not the Applicants were given an opportunity to be heard and given an explanation regarding the change in access location and increased access monitoring.

5. The Board finds there is no jurisdiction to hear the complaint that the Society made seventy-five false statements in a Court document. The Applicants indicated that these issues have been addressed by way of a responding affidavit filed in Court. Issues of perjury and credibility must be addressed in that forum. These matters may be raised by the Applicants at trial and are not matters that the Board can hear having regard to the provision in subsection (8)(a) of section 68.1 of the Act.

6. The Board finds that there is limited jurisdiction to hear the complaint pursuant to subparagraphs (4) and (5) of section 68.1(4) of the Act in respect of therapy sessions arranged by the Society for the children. The Board’s jurisdiction is limited to the allegation that the case worker failed to arrange a follow-up meeting or joint session to obtain a progress report or update for the Applicants in respect of therapy for the children.

7. The Board finds that there is jurisdiction to hear the complaint that the Society ignored the attempts made by the Applicants to improve themselves pursuant to subparagraphs (4) and (5) of section 68.1(4) of the Act. While the Applicants’ capacity to parent may be before the Court, the issue before the Board is whether or not the Society provided the Applicants with an opportunity to be heard and reasons as to why their attempts to improve themselves were not taken into account by the Society.

8. The Board finds there is no jurisdiction to hear the complaint that the Society ignored the plans made by the Applicants to have their home made more suitable for the children because that is clearly a consideration for the Court. The Board finds that this is part of the Plan of Care filed by the Applicants with the Court in the protection proceeding and therefore outside of Board jurisdiction by operation of subsection (8)(a) of section 68.1 of the Act.

9. The Board finds that there is no jurisdiction to hear the complaint in respect of the allegation that the Society changed a six month Supervision Order into a twelve month Supervision Order by operation of subsection (8)(a) of section 68.1 of the Act. Supervision Orders are made by the Court and not by the Society. The position taken by the Society would have been articulated to the Applicants and to the Court in various documents filed in the Court proceeding.

10. The Board finds that there is jurisdiction pursuant to subparagraph (5) of section 68.1(4) of the Act to hear the complaint that home access visits intended to begin in October 2006 did not occur. The hearing of this complaint is limited to the consideration of the lack of explanation or reasons given by the Society to the Applicants in respect of the failure to implement home access visits.

11. The Board finds there is no jurisdiction to proceed with the complaint that the Society is attempting to have the eight youngest children declared Crown Wards. This consideration is clearly before the Court in the protection application and is the subject matter of the trial scheduled for later this year and therefore outside Board jurisdiction by operation of subsection (8)(a) of section 68.1 of the Act.

PROCEDURAL CONSIDERATIONS

9This matter is to be set for a hearing on the merits for a full day (or for more than one day should the presiding member so direct). The issues to be heard are the six specific matters wherein the Board has jurisdiction as detailed in paragraphs 1, 3, 4, 6, 7, and 10 above. 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 June 4, 2008.

10As 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. Each party is responsible for having any required witnesses present for the hearing. Witnesses may only be called regarding the matters which the Board is allowing to proceed to hearing. At the hearing, the Applicants will proceed first. A teleconference may be arranged by the Case Coordinator between the presiding member and the parties to consider procedural matters related to the hearing such as the time required for the hearing, availability for the hearing beyond that already indicated, and the number and relevance of witnesses (evidence) proposed to be called.

Gail Gonda Presiding Member

Denyse Diaz Panel Member

Gregory Price Panel Member