B.K. v. Family & Children’s Services of the Waterloo Region, 2009 CFSRB 65

CHILD AND FAMILY SERVICES REVIEW BOARD

B.K.

v.

Family & Children’s Services of the Waterloo Region

REASONS FOR DECISION ON JURISDICTION

Date: November 9, 2009

Citation: 2009 CFSRB 65

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

INTRODUCTION

1On August 18, 2009, the Child and Family Services Review Board (the “Board”) received an application from B.K. (the “Applicant”) regarding a complaint against the Family & Children’s Services of the Waterloo Region (the “Society”) pursuant to section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”).

2The application was determined to be eligible on September 2, 2009 pursuant to subsections 68.1(4)4 and 5 of the Act. A finding of eligibility by the Board simply means the application can proceed to the next step in the Board’s processes – the filing of the Society’s summary reply.

3The Society delivered its summary reply to the Board on September 9, 2009. In the reply, the Society argued the Board had no jurisdiction to hear the application because the subject matter of the complaint is a matter currently before the Court. The Society argued that in the event the Board had jurisdiction, further particulars were required from the Applicant.

4A hearing into the question of jurisdiction was held in Guelph, Ontario on October 26, 2009 via videoconference as the Applicant currently resides in [ ], [ ]. The Society called no oral evidence and relied on its documentary evidence and submissions. These are the Board’s reasons on the jurisdiction motion.

BACKGROUND

5The Applicant is the father of two children, now five and six years of age. He and the children’s mother, S.B., are separated. The children resided with their mother after the couple first separated.

6The Society became involved with the family in October 2006 and the children were placed with the Applicant by court order due to concerns about the mother’s mental health. The children were placed with the Applicant under a supervision order from mid-October 2006 until May […], 2008. From May […], 2008 to the present the children have been placed with their mother subject to a supervision order. There is a court order granting the Applicant access to his children “at the discretion of the Society.” After the children were placed in the care of their mother, the Applicant moved to [ ].

7There are ongoing court proceedings between the parents regarding custody and access, with a trial date set for December […], 2009. The Society has no protection concerns regarding the children and has applied to the court to terminate its involvement with the family.

8A pre-hearing teleconference took place on October 9, 2009 with the parties. The Pre-Hearing Report framed the issues as follows:

The Society failed to give him an opportunity to be heard as required by s.2 (2) (a) of the Act and failed to provide him with reasons for decisions that affected his interests relating to:

1. The exercise of Society discretion about supervised access including lack of worker objectivity, the logistics of access and telephone access, not managing the mother’s interference in access, numerous concerns about access and the failure to respond to those concerns.

2. Concerns about the mother including that her mental health had not stabilized, parental alienation of the children by the mother, care of the children while she was hospitalized, care of the children when he could not locate the mother (May […]-[…], 2009), her plan to abscond with the children, incidences of violence and hostility and the mother’s ability to care for the children.

9The Society argued the Board lacked jurisdiction to hear the application because the matters complained about were decided by the Court. The Applicant’s position is that the Board has jurisdiction to hear the application.

ANALYSIS

10The Board has jurisdiction to hear an application if the complaint relates to a service sought or received from the Society and it fits within one or more of the enumerated grounds under section 68.1(4). The Board does not have jurisdiction to hear an application if the complaint relates to a matter that has been decided by the court. The relevant statutory provisions are set out below:

68.1(4) The following matters may be reviewed by the Board under this section:

4. Allegations that the society has failed to comply with clause 2(2)(a)

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

2(2) Service providers shall ensure,

(a) 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.

68.1(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.

Issue no. 1: exercise of Society discretion about supervised access

11The Society argues that the Court ordered access at the Society’s discretion and therefore, this issue has been, and continues to be, before the Court. The Society often seeks this Order as it offers greater flexibility and it is not necessary to return to Court to vary the access provisions. The Society argues that if the Applicant wanted specified access then he would have to bring a motion before the Court. Therefore, access and the variation of access is a matter that is within the purview of the Court and beyond the Board’s jurisdiction.

12The Society further argues that the Applicant’s complaints of bias on the part of Society employees arise from his reading their Court affidavits and evidence, which can be questioned and tested in Court.

13The Applicant argues that his complaint revolves around the way the Society exercised its discretion and his opportunity to be heard on that matter. As he is currently living in [ ] and the children are with their mother in Ontario, his only access is twice per week via “Skype” communication over the Internet. Skype permits both visual and oral communication. The children’s mother has recently decided not to allow the Applicant to see the children via video, however, he can still speak with them online. The Applicant alleges that the Society is not doing anything to address the concerns he has raised about this telephone access and believes that the Society is unfairly exercising its discretion in favour of the children’s mother.

14The Board finds that it has jurisdiction to review this complaint by the Applicant. While the Board cannot review the Court Order of access at the Society’s discretion, the Board’s mandate under the Act is to address an applicant’s right to be heard when the Society delivers services and makes decisions.

15Under subsections 68.1(4)4 and 68.1(4)5, the Board must ensure that the Society listened to the Applicant and provided him with reasons for decisions which affect him and his children’s lives, as required by statute. If the Court has the decision-making authority over the issue, the Board has no role. However, if the Society has the decision-making authority, for example, on how the access should occur, then the Board has the mandate to ensure that the Society has met its obligations when delivering this service.

16In this situation, the Society under the Court Order has the delegated authority to arrange access between the Applicant and his children. The Society determined that the Applicant should have access to his children twice per week. The Applicant in this complaint is alleging that the Society did not hear his concerns about how the Society was exercising this discretion. It is clearly a decision that has been made by the Society and the Board has the authority to ensure that the Applicant’s rights were respected. As such the Board will review this complaint.

Issue no. 2: Concerns about the mother

17The Society argues all issues relating to the mother’s ability to care for her children were before the Court in the protection proceedings. For example, the Applicant raised concerns regarding Ms. S.B.’s mental health and whether it was appropriate for the children to be placed with her. Counsel for the Society argues that placement of the children with their mother was a Court decision and any change in custody must also take place through the court. Counsel noted that Ms. S.B. also has rights, including a right to confidentiality, which must be considered in responding to the Applicant’s complaint. The Society notes that the Applicant’s concerns of parental alienation were placed before the Court in both his “answer” to the Court proceedings and in the Settlement Conference Brief.

18Counsel for the Society argues that the mother is prohibited by Court Order from moving out of the province, so the Applicant’s concerns that she may abscond with the children is therefore outside the Board’s jurisdiction. Finally, the Society argues that the Board’s processes are not to be used to cure perceived injustices in the court process.

19The Applicant argues that the Society does not respond when he raises concerns and that the concerns have to do with the well-being of his children. His documents include a record of numerous calls and e-mails to the Society which he alleges were not returned or answered.

20With respect to raising these issues in Court, he argues that the Court never actually hears the issues because they invariably send the parties outside of the courtroom to come up with some agreement, rather than actually hearing the matters. The Applicant believes that there is a “cloud of secrecy” surrounding the decisions made by the Society.

21The Board finds that it has the jurisdiction to hear this complaint raised by the Applicant. Some of the facts that appear in Court applications and applications before the Board are similar. Information that is contained in documents that are filed with the Court is not necessarily an issue that will or must be determined by the Court. Some of the issues that fall within the Board’s mandate may or will be decided by the Court. For an issue to be beyond the jurisdiction of this Board, the Court must be clearly in a position to either address it or have made a determination on the issue.

22Matters discussed in a settlement conference as part of Court proceedings would be considered to be “before the court” for purposes of a jurisdiction determination. The issue before the Court is where the children should be placed and their safety in that placement. The Court does not determine whether the Society listened to the Applicant or provided him with reasons for its decisions after he raised his concerns, as required by statute. The Board, on the other hand, has jurisdiction over communication between the Society and the parent receiving services. The Board finds the Applicant’s complaint, insofar as it relates to whether the Society heard the Applicant’s concerns about his children’s safety while with their mother, and whether it gave him reasons for decisions it took in this regard, is not to be before the court and can be reviewed by this Board.

Alternative Argument: Request for Particulars

23Counsel for the Society argued that in the event the Board finds it has jurisdiction to hear this application, it should order the Applicant to provide particulars to allow the Society to understand the case against it and the remedy requested. Counsel argued that the Society is at a loss in offering the Applicant a resolution to his complaint.

24The Applicant responded that all the particulars of his application have been provided, and that the documents speak for themselves.

25The Board finds that the Applicant has provided sufficient particulars of his complaint for the Society to understand his position. With respect to remedy, it is the Board that will determine the appropriate remedy from among those available to it in section 68.1(7), should it uphold the application. It has been made clear to all parties that the Board does not have the jurisdiction to make any order with respect to custody and access.

CONCLUSION

26The Board dismisses the Society’s motion and finds that it does have jurisdiction to hear both of the complaints raised by the Applicant. An oral hearing on the merits of the application will therefore take place.

Denyse Diaz Presiding Member

Heather Gibbs Board Member

Lorna King Board Member