R.D. v. The Children's Aid Society of the Districts of Sudbury & Manitoulin, 2008 CFSRB 89

CHILD AND FAMILY SERVICES REVIEW BOARD

R.D.

v.

The Children's Aid Society of the Districts of Sudbury & Manitoulin

REASONS FOR DECISION ON JURISDICTION

Date: September 11, 2008

Citation: 2008 CFSRB 89

Indexed as: R.D. v. The CAS of the District of Sudbury & Manitoulin (CFSA s.68)

1This is an application by R.C.D. (the "Applicant") under s.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 Applicant about the Children's Aid Society of the Districts of Sudbury and Manitoulin (the "Society") dated March [...], 2008 and March [...], 2008. The Applicant confirmed that the three issues forming the basis of his complaints were accurately summarized in the Pre-Hearing Report of June 19, 2008 as follows:

1. The Applicant's concern that his child, R.J.D., born the [...] day of May, 2003 be removed from the care of B.R., where the child has been placed since May of 2003, and given an opportunity for kinship placement. The related concern is that the Applicant takes issue with the Society not considering a kinship placement for this child or for his other children at the time of apprehension.

2. The complaint by the Applicant that the Society placed two of his children, T.D. and B.D., in an unapproved foster home after their apprehension on March [...], 2000. The Applicant originally complained to the Society about this concern in 2000.

3. The complaint by the Applicant that he is being harassed by the Society. The Applicant believes the historical basis for this harassment to be allegations of a sexual nature involving one of his children dating back to 1999.

2The Applicant raised issues one and two in his applications and issue three was raised for the first time in this proceeding at the Pre-Hearing. The Society took the position that there is no jurisdiction for the Board to deal with any aspect of the complaints and that all matters had been before the Court or subject to another decision-making process under the Act or otherwise outside of the jurisdiction of this Board. Society legal counsel relied upon subsection (8) of section 68.1 of the Act 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; or

(b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995.

3The Board must decide whether it has jurisdiction to hear any of the three issues raised by the Applicant in his applications.

BACKGROUND

4The Applicant and his wife, D.D1., are the parents of six children namely C.D1. "C.D1." born December [...], 1995, T.D. born November [...], 1996, C.D2. born October [...], 1997, B.D. born November [...], 1999, D.D2. born July [...], 2001 and R.J.D. born May [...], 2003. The Society became involved with the Applicant and his family in 1996 when his oldest child "C.D1." was less than one year old. On June [...], 2003, the five oldest children were made Crown Wards without access by Order of Justice R.W. Lalande. The youngest child R.J.D. was made a Crown Ward without access on May [...], 2005 by Order of Justice Louisette Duchesneau-McLachlan. There have been a number of legal proceedings involving the Applicant and his family which can be summarized, as relevant to this application, as follows:

1. Child Protection Application #C-576/97 in the Ontario Court of Justice at Sudbury in respect of the five oldest children of the Applicant resulting in the following Orders:

a) July [...], 2002 Order of Justice R.W. Lalande finding the five oldest children to be (or continuing to be) in need of protection.

b) June [...], 2003 Order of Justice R.W. Lalande providing for Crown Wardship without access for the five oldest children.

2. Appeal of July [...], 2002 and June [...], 2003 decisions of Justice R.W. Lalande to the Superior Court of Justice #88/03 by D.D1. and by R.C.D. "R.C.D.". Appeal dismissed with reasons by Justice Michael R. Meehan on August [...], 2004.

3. Child Protection Application #C576-97 in the Ontario Court of Justice in respect of the youngest child of the Applicant, R.J.D., resulting in a final Order by Justice Louisette Duchesneau-McLachlan on May [...], 2005 finding this child to be in need of protection and providing for Crown Wardship without access.

4. Director review by P.C. of the decision by the Society not to place the five oldest children of the Applicant with their extended family being M. and R.D. (paternal grandparents), C. and D.D3. (uncle and aunt), C.D3. (aunt) and J. and C.S. (uncle and aunt) pursuant to (then) s.144 of the Act. Decision made December [...], 2005 to confirm the decision of the Society not to place the children with the D. extended family.

5. Director review by D.J.M. of the decision by the Society not to place the Applicant's youngest child, R.J.D., with his extended family being a paternal aunt, C.D3., pursuant to (then) s.144 of the Act. Decision made November [...], 2006 overturning the Society decision and directing that this child be placed with his aunt, C.D3., for adoption (later quashed).

6. Order made in the Superior Court of Justice (Divisional Court) on March [...], 2008 quashing the decision of D.J.M., the Director, dated November [...], 2006.

5The applications to this Board were made in the same month (about two weeks after) as the disposition on the judicial review before the Divisional Court summarized in paragraph 4.6 above.

Preliminary Consideration – the Loss of Jurisdiction Argument

6The Society argues that the Board has lost jurisdiction in this proceeding by failing to provide reasons for its eligibility decision. The position advanced is that the duty of fairness requires that reasons be given for certain decisions, including the eligibility decision made on April 24, 2008.

7In accordance with its normal process, the Board's eligibility decision was made after receipt of the application(s) from the Applicant and before any response (summary reply) from the Society. The Society argues that it did not know the basis upon which the eligibility decision was made. Specifically, the Society suggests that when the eligibility decision-making process is not open and transparent, a party is deprived of the right to question that decision. Counsel relies on the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration)¹ and the Divisional Court's decision in Sharma v. Waterloo Regional Police Service² in support of the argument that reasons must be given and the failure to do so results in the loss of the Board's jurisdiction.

8Ontario Regulation 494/06 (the "Regulation") provides direction to the Board in determining the eligibility of a complaint for review. The governing provision is section twelve which states:

12(1) The Board shall determine whether a request for a review of a complaint is eligible for review under sections 68 or 68.1 of the Act within seven days after receiving the request and the Board shall notify the complainant and the society of its decision in writing.

(2) If the complaint is not eligible for review, the notice shall include reasons in writing as to why it is not eligible.

9The Board Rules of Procedure also address eligibility in Rules 53 to 56 which provide as follows:

53. The following allegations are eligible for review by the Board:

a) Allegations that the Society has refused to proceed with a complaint in accordance with the procedures established by Regulation;

b) Allegations that the Society has failed to respond to the complainant's complaint within the timeframe required by Regulation;

c) Allegations that the Society has failed to comply with the complaint review procedure or with any other procedural requirements under the CFSA relating to the review of complaints;

d) Allegations that the Society has failed to allow children and their parents to 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, as directed in section 2(2)(a) of the CFSA.

e) Allegations that the Society has failed to provide the complainant with reasons for a decision that affects the complainant's interests.

f) Allegations of inaccuracy in a Society's file or records regarding the complainant.

54. The Board may only review a Society's decision regarding an alleged inaccuracy in its files or records after the complaint has been made to the Society and the Society has completed its review procedure.

55. The Board shall determine whether the application is eligible for review within seven days after receiving the application. The application is eligible for review if it concerns an allegation described in Rule 53.

56. When the application is eligible for review, a written decision on the eligibility will be sent to the parties. Where the application is not eligible for review, the written decision will include reasons.

10The Board provided its eligibility decision to the Applicant, with a copy to the Society, by letter dated April 24, 2008. In that letter, the Board provided the following reasons for its decision:

Your application has been assessed and has been determined eligible for review by the Child and Family Services Review Board pursuant to Section 68.1 of the Child and Family Services Act, as you have concerns about the services your children are receiving from the Society and that you were not given reasons for your children's placement in an unapproved foster home.

11The Act requires the Board to make its eligibility decision within seven days of receiving a section68/68.1 application. It is not possible for the Board to conduct a hearing on this question within the legislative timeline and there is no definition of "eligibility" set out in the Act. In order to ensure that its processes are transparent and fair, the Board developed its own definition of eligibility that is communicated to parties in Rule 53 of the Board Rules of Procedure. A complaint is eligible if it fits within the enumerated grounds of complaint set out in sections 68 and 68.1.

12The Board finds that procedural fairness considerations do not require it to provide written reasons when an application is deemed eligible for review. The eligibility decision itself is a low threshold administrative decision as to whether an application can move to the next step in the process if eligible. If the application is eligible, the children's aid society can raise its jurisdictional arguments as to why the matter should not proceed to a hearing on the merits. At that point, a hearing is held to determine whether the Board has jurisdiction to proceed.

13Where an application is not eligible, the Board is required under the Act to provide reasons. This is because a determination of ineligibility is a final disposition of the matter in that it ends the Applicant's right to proceed with a complaint. Conversely, a determination of eligibility simply means the matter can proceed to the next stage in the Board's process. As such, reasons are not required. For these reasons, the Board finds that procedural fairness considerations do not require the Board to provide written reasons when an application is deemed eligible for review.

14In this case, the Board advised the Society that the application was eligible because the allegations fit within the requirements of section68.1. The Applicant had concerns about the services he was receiving and he was not given reasons for the placement of his children in an unapproved foster home. The Society was then given the opportunity to assert that the Board did not have jurisdiction to hear the application because the complaints had been before the Court or another decision-making process under the Act in its summary reply. Those submissions led to this jurisdictional hearing. The Board therefore finds that it has jurisdiction to continue in this matter and to decide the jurisdiction issues raised by the Society in respect of the three identified complaints.

ANALYSIS

15The Board must determine whether it has jurisdiction to hear the three complaints in this matter and whether these three complaints have been decided by the Court or were subject to another decision-making process under the Act or otherwise outside Board jurisdiction. Each issue was heard separately at the jurisdiction hearing to simplify the process and as an accommodation to the Applicant. This analysis follows the same order.

Issue One: Kinship Placement

16The first issue is the complaint that the Society did not provide an opportunity for kinship (extended family) placements for the children. The Society took the position that kinship placements for the children were fully canvassed in the various legal proceedings between the Applicant and the Society and directed the Board to the following in support of this position:

1. Correspondence, sent while the protection proceeding was ongoing, at Tab 2 and Tab 3 in Exhibit R-1 from Society legal counsel to Applicant legal counsel dated November [...], 2001 and March [...], 2002 offering a permanent placement of the five oldest children with the Applicant's siblings.

2. Excerpts from the transcript of the evidence of R.D. (Applicant's father) given November [...], 2002 in the protection proceeding involving the five oldest children. This transcript is contained at Tab 4 of Exhibit R-1 and the Board was referred to passages on pages 69-71 and 94-95. The evidence given by R.D. is clear that placement with extended family was not supported at that time by the D. family as they were supporting the return of the children to the Applicant and his wife. In cross-examination by counsel for the Society, the Applicant's father was asked about the willingness of himself and his wife (paternal grandparents) to take the children. The following exchange is from the transcript on pages 70 and 71:

Q. Accept for the moment, Sir, that my question has some reasonable basis for it. All right? Just accept that for the moment. Do you know whether the Children's Aid Society was seeking out some kind of proposal from your children, your other children, relating to your grandchildren that are the subject of these proceedings?

A. Are you talking about the Children's Aid in Sudbury or the Children's Aid in St. Catharines?

Q. Either the Children's Aid in St. Catharines or the Children's Aid Society in Sudbury?

A. Well, they were discussing different avenues.

Q. You're here, Mr. R.C.D., today, and you're saying that to your knowledge the only option or the only position that the family supports – and I use the word 'family' now in talking about the D. family.

A. Okay.

Q. Supports, is the return of the children to R.C.D. and D.D1.?

A. Yes, they support that.

Q. And let me be clear. My question was, the only position being supported by the D. family is the return of the children to D.D1. and R.C.D.. Am I correct in that...

A. At this time, that is the correct – that is the plan. The support.

3. Counsel for the Society directed the Board to paragraphs 107-109 of the decision of Justice R.W. Lalande dated June [...], 2003 found at Tab 6 in Exhibit R-1. These passages support the proposition that kinship placement was not put forward by the paternal grandparents in the protection proceeding and that their position was simply to support their son and his plan that the children return home to him and their mother.

4. Counsel for the Society directed the Board to paragraph 23 on page 4 of the Appeal decision of Justice Meehan contained at Tab 9 in Exhibit R-1 wherein Justice Meehan finds the following:

[23] There was no evidence that the paternal grandparents were able to meet the challenge of raising the five children, although no doubt they did love their grandchildren. As well, Ms. B. gave evidence that the Society would continue to make efforts to place the children in a First Nation's home and to continue working with the community and Band, although there was no specific community placement option available at that time.

5. Counsel for the Society referred the Board to Tab 14 of Exhibit R-2 being a sixty-one page decision by P.C., a Director conducting a review pursuant to s.144 of the Act. The scope of this review was set out in the first paragraph on page 1 as follows:

I have been appointed a Director pursuant to subsection 5(1) of the Child and Family Services Act, R.S.O. 1990, c.C. 11 (herein the "Act") to conduct a review, pursuant to Section 144 of the Act, of the decision of the Children's Aid Society of the Districts of Sudbury and Manitoulin (herein the "Society") not to place the D. children, C.D1. (D.O.B. Dec. [...], 1995), T.D. (D.O.B. Nov. [...], 1996), C.D2. (D.O.B. Oct. [...], 1997), B.D. (D.O.B. Nov. [...], 1999), and D.D2. (D.O.B. July [...], 2001), with their extended family, M. and R.D. (grandparents), C. and D.D3. (uncle and aunt), C.D3. (aunt), and J. and C.S. (uncle and aunt).

The decision made by the Director is set out in the conclusion on page 61 as follows:

Currently the children's best interests are served by a continuation of their existing caregiving and by permitting the current adoption placements to proceed to completion. I confirm the decision of the Society not to place the children with the D. extended family.

6. The Board was referred to the Crown Wardship decision of Justice Louisette Duchesneau-McLachlan contained at Tab 12 of Exhibit R-2 in respect of R.J.D.. A review of the decision makes no mention of a plan by the Applicant for kinship care of this child and paragraphs Y and Z on pages 6 and 7 sets out the determination that this child would be at risk if returned to his parents and supports permanency planning with B.R., the foster mother. It was further submitted by counsel, with reference to the Act, that placement with extended family was a statutory option the Justice was required to consider.

7. Counsel for the Society referred the Board to Tab 15 of Exhibit R-2 being a forty-eight page decision by D.J.M., a Director conducting a review pursuant to s.144 of the Act. The scope of this review was set out in the first paragraph on page 1 as follows:

The Director is to perform the duties and functions and exercise the powers of a Director for the purposes of section 144 of the Child and Family Services Act only in respect of a review of the decision of the Children's Aid Society of the Districts of Sudbury and Manitoulin not to place R.D. with C.D3. for adoption.

17It was the decision of the Director to rescind the decision of the Society and to facilitate an adoption by the paternal aunt, C.D3.. This decision was quashed by Order made in Divisional Court on March [...], 2008 and this Order is at Tab 18 in Exhibit R-2.

18On the basis of the above, the Society submits that there is no jurisdiction for the Board to proceed with this complaint as it has already been before the Courts and the subject of the decision-making process under s.144 of the Act (Director Review).

19The Applicant responded by raising the involvement of W-5 (the television program) who he indicated "bought his story". The Applicant took the position that he refused to sign a consent for adoption of his children by his siblings (on the second last day of trial) on instructions from W-5. The Applicant spoke generally of his concerns that his children be placed with his family and not with strangers and that his sister, C.D3., have visiting rights. The Applicant further submitted that his parents were a back-up plan and were always available for the children should the Applicant and his wife be unsuccessful at trial.

20Having considered the submissions of both parties and the evidence tendered, the Board finds that it has no jurisdiction with respect to the first issue. The issue of kinship placements for all of the Applicant's children was before the Court or was the subject of another decision-making process in the form of a Director's Review under the Act.

Issue Two: Unapproved Foster Home

21The second issue is the complaint that the Society placed two of the children in an unapproved foster home after their apprehension on March [...], 2000. This placement continued for two months until May [...], 2000. The Applicant was concerned about the inexperience of the foster mother which he claimed resulted in the child, B.D., becoming ill and almost dying. The Society took the position that the foster home placement would have been before the Court in the general sense and that any placement concerns of the Applicant could have been raised and addressed by the presiding Justice in the protection proceeding. A summary of the temporary orders made in the protection application proceeding is set out in paragraph 7 on page three of the decision of Justice R.W. Lalande at Tab 5 of Exhibit R-1. These protection matters were before the Court and temporary orders were made on March [...], 2000, May [...], 2000, June [...], 2000 and June [...], 2000 (and afterwards). The Society had temporary care of the children and submit that the above Court attendances were a potential forum to address the Applicant's foster home concerns. The Society also produced a partial transcript from the 2002 – 2003 protection proceeding of the evidence of R.C.D. in cross-examination which was marked as Exhibit R-3 in this proceeding. This exhibit is five pages in length (pages 19 to 23) and canvasses the issues of inadequate care by foster parents and B.D.'s asthma. The Board notes in particular the evidence on page 19, line 26 to Page 20, line 15 as follows:

Q. Now, in your testimony you also indicated, as I understand it relative to T.D.' asthma, that you believed that the reason that T.D. acquired asthma was because the foster parents weren't adequately taking care of him?

A. I would like to correct that to B.D..

Q. B.D.? Okay. Thank you. So, it wasn't T.D. but it was B.D. that you were referring to and you were indicating that B.D. had – it was your view B.D. had acquired asthma because the foster parents had poorly cared for him? You described the child was dirty....

A. Oh, in the visits, there was dirt between his fingers. He had a stink to him that, it was a body odour, not, like, a shit smell. That he was not properly washed. And I had an opportunity the first time he was in the office to meet the foster mother. She was a very nice woman, but I didn't feel that she had a fair chance because nobody had properly taught her how to take care of a baby.

Q. Thank you. Now, it is your belief that B.D. acquired asthma because he was in the – because of these foster parents?

A. Asthma and pneumonia.

22Counsel for the Society submits that the transcript evidence at trial referred to above clearly establishes that this issue was before the Court. In the alternative, counsel for the Society submits that the residential change from the impugned foster home after only two months may have been (at least in part) a response by the Society to the Applicant's concerns.

23The Applicant responded to Society submissions by detailing concerns with the foster home – the children were dirty, had severe diaper rash and B.D.'s condition was deteriorating. The Applicant and his wife were called when B.D. was hospitalized for asthma where they then met the foster mother. The foster mother is reported as having told the Applicant that she called the Society to adopt a child and was then enlisted to foster two of the D. children with no one to tell her how to care for the children. The Applicant further advised the Board that the concern with the foster home was raised in Court and that "as soon as we raised it with the Court, the Court told our lawyer to get us under control." The Applicant also submitted that a written complaint was made to the Honourable Marie Boutrianni (the then Minister of Child and Youth Services) and that there was no response to this complaint letter. The Applicant could not provide the Board with a copy of this complaint letter because he stated his house had burned down and he lost everything.

24Having considered the submissions of both parties, and the evidence tendered, the Board finds that it has no jurisdiction with respect to the second issue as it was before the Court as outlined above.

Issue Three: Harassment

25The third issue is the complaint by the Applicant that he is being harassed by the Society. This complaint was raised for the first time at the Pre-Hearing. No particulars to support the harassment allegation were provided by the Applicant to the Society or the Board, making this consideration difficult to address due to vagueness and lack of specificity. No details were given to the Board which would have this complaint fall within the legislative parameters of subsection (4) of section 68.1 of the Act or within the provision of Rule 53 of the Board Rules of Procedure. On this ground alone, the Board has no jurisdiction to proceed with this third issue.

26The Society took the position that the Board has no jurisdiction to hear the harassment issue on the legal basis outlined above and in addition, that this concern was also before the Court and perhaps the subject matter of the Society's internal complaint process in effect at the time.

27Counsel for the Society took considerable time in his submissions to outline the course of events leading to Crown Wardship with no access dispositions in the child protection proceedings. It was noted by the Society that sexual impropriety (or risk of sexual harm) were not allegations before the Court at trial and that the concerns in respect of the Applicant were more related to his lack of receptiveness to services by various service providers in order to make necessary changes.

28The Society directed the attention of the Board to paragraph 78 on pages 12 and 13 of the disposition decision of Justice R.W. Lalande at Tab 6 of Exhibit R-1. Justice Lalande summarized the evidence of the Applicant in that proceeding and the three points from that decision deemed relevant by the Society in respect of the harassment issue are as follows:

• He stated that he has been accused of not co-operating with service providers. He said that it has not been himself who has been making the trouble. He maintained "they made the trouble".
• He states that supervision over his children is not required and that he is against having an army of persons throughout his house again.
• He stated "I need protection from persons with a chip on their shoulder who have all that power".

29Society counsel also directed the Board to excerpts from various exhibits to demonstrate that difficult relationships between the Applicant and service providers was a recurring theme in the Court proceedings and submitted that the harassment issue had been placed before the Court by the Applicant.

30The Applicant spoke of the early genesis of his involvement with the Society and the fact that a sexual impropriety allegation had been made by his wife's cousin which he viewed as being the start of his troubles with the Society and a factor in how the Society has dealt with him throughout. The Applicant also spoke of police officers interviewing his neighbours at the time, and of his concerns in respect of a connection between a police officer and the police officer's spouse who was employed by the Society. The Applicant mentioned a meeting in 2000 that he arranged with M.R., the Director of Services, and J.M., the Director of the Society, at that time. The Applicant recalled discussing "bits here and there" at this meeting including the earlier allegation of sexual molestation and an incident about his daughter "tripping". The Applicant was given the opportunity by the Board to air all of his concerns during his lengthy submissions in response to the Society position.

31Having considered the submissions of both parties and the evidence tendered the Board finds that it has no jurisdiction with respect to the third issue for the following reasons:

a) this complaint lacks particulars which would bring the complaint within the legislative jurisdiction of this Board;

b) it is clear on the evidence that the Applicant's general harassment concerns were before the Court;

c) it would appear from the Applicant's submission that his concerns were heard by the Executive Director in accordance with the internal complaint review process in place at the relevant time. The transitional provision in s.68(13) of the Act would then apply. In other words, the harassment complaint was dealt with by the Society prior to November [...], 2006 in accordance with the internal complaint review process in place at that time.

d) at the heart of the harassment complaint is the Applicant's assertion that an allegation of sexual impropriety was made in 1999. Given the passage of time and the lack of sufficient particulars regarding this complaint, the Board is unable to conduct a fair hearing into this matter more than eight years later.

DECISION

32For the reasons set out above, the Board finds that it has no jurisdiction to hear any of the complaints made by the Applicant and, accordingly, the applications are dismissed.

Gregory Price Presiding Member

Jennifer Scott Panel Member

Heather Hunter Panel Member

Footnotes

1. 1Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39, [1999] A.C.S. no 39, [1999] 2 S.C.R. 817, [1999] 2 R.C.S. 817, 174 D.L.R. (4th) 193, 243 N.R. 22, J.E. 99-1412, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 89 A.C.W.S. (3d) 777.
2. 2Sharma v. Waterloo Regional Police Service, [2006] O.J. No. 2948, 213 O.A.C. 371, 149 A.C.W.S. (3d) 928.