S.B. v. Family Youth & Child Services Muskoka, 2010 CFSRB 26

CHILD AND FAMILY SERVICES REVIEW BOARD

S.B.

v.

Family Youth & Child Services Muskoka

REASONS FOR DECISION

WRITTEN REVIEW

Date: June 4, 2010

Citation: 2010 CFSRB 26

Indexed as: S.B. v. Family Youth & Child Services Muskoka (CFSA s.68)

INTRODUCTION

1On May 6, 2010 S.B. (the “Applicant”) sent an application to the Child and Family Services Review Board (the “Board”) for a review of his treatment by the Family Youth & Child Services Muskoka (the “Society”). Mr. S.B. complains that the Society has not given him an opportunity to be heard, as required by clause 2(2)(a) of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”), and has not given him reasons for a decision that affects his interests.

2The Board determined on May 10, 2010 that the complaint was eligible for review by the Board pursuant to sections 68.1(4)4 and 68.1(4)5 of the Act. This means that it appears from the content of the application itself that it is eligible to move to the next stage of the process, which is the submission of a summary reply from the Society.

3The Society filed a summary reply on May 17, 2010 in which it set out its position that the concerns identified by Mr. S.B. are before the Court and the Board lacks jurisdiction.

4The Board finds that there is sufficient material before it to conduct a written review of the application, including the Child Protection Application filed with the Superior Court on May […], 2010, and the Notice of Motion and Affidavit of L.M. sworn May […], 2010.

5The issue before the Board is whether the subject of the current application has been dealt with by the Court.

6For the reasons that follow, the Board finds that it does not have jurisdiction to proceed with this application.

7The relevant sections of the Act are as follows:

68.1 (1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may

(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section...

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

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.

BACKGROUND

8Mr. S.B. is the father of N.B. (born November […], 2006) and J.B. (born April […], 2008). The parents are separated. The children currently reside with their mother, C.B., with access to their father as provided under a Children’s Law Reform Act order.

9According to the information in the file, the Society has been involved with the family since approximately August, 2008 when Mr. S.B. called them with concerns about Ms. C.B.’s ability to care for the children. Since that time, the Society has been contacted on numerous occasions by the Applicant, his girlfriend, and the children’s paternal grandmother.

10The Society filed a protection application with the Superior Court, with respect to these children, on May […], 2010. The basis of the protection application is that the Applicant’s ongoing complaints about the mother have exposed the children to harm. The Society submits that the subject matter of Mr. S.B.’s complaint is currently before the Court in the form of the protection application, and therefore the Board has no jurisdiction to review it.

ANALYSIS

(i) The subject of the complaint

11The Board’s complaint form asks applicants on the first page to “Please use the space below to explain your complaint in detail. Be as specific as possible. Attach additional pages if necessary.” Mr. S.B. did not explain the basis of his complaint in the provided space, but attached a letter to his application. The letter is dated December […], 2009 and was written to the Applicant by M.R., Director of Services. Mr. S.B. refers to the December […] letter as the “internal complaint review panel results letter”. The Board therefore understands that the complaint discussed in the December […] letter is the complaint Mr. S.B. is requesting the Board to review.

12Mr. M.R.’s letter indicates that, following a December […], 2009 meeting he had with Mr. S.B., it was decided there would be a “full manager’s review of the file and a new investigation of any outstanding allegations by the case manager”. Mr. M.R. mentions the subject matter of the complaint in this sentence: “We trust this will be helpful to satisfy all concerned that all of the allegations have been properly investigated and dealt with.” (emphasis added)

13The Board understands Mr. S.B.’s complaint to be that his allegations regarding the safety of the children have not been properly investigated or dealt with by the Society. His complaint to the Board in this regard is that the Society has not heard him with respect to his numerous concerns, as evidenced by the alleged lack of response and that they have not provided him with reasons for their alleged inaction.

14When the Society received a copy of Mr. S.B.’s application to the Board, it filed materials in response. Those materials include a copy of a February […], 2010 letter to Mr. S.B. which followed from the December […], 2009 letter, attached to the Application. J.A., Manager of Services, refers in that letter to the “comprehensive review of our case concerning you and C. as committed to you during your meeting with M.R., Director of Services, on December […], 2009.”

15It is evident from the December […], 2009 and February […], 2010 letters that the subject matter of Mr. S.B.’s complaint is the way the Society has dealt with the allegations he and his girlfriend have made of abuse and neglect against the children’s mother. These allegations date back to August, 2008.

(ii) Is the complaint before the Court

16The Society sent the following materials, in support of its position that the subject of the complaint is before the Court:

• a Protection Application, filed with the Superior Court of Justice Family Court Branch in [ ], Ontario on May […], 2010, with a first appearance date of May […], 2010;

• a Notice of Motion, returnable May […], 2010, for an Order placing the children in the custody of their mother, with Mr. S.B.’s access supervised at the Supervised Access Centre;

• An affidavit in support, by L.M., Family Service Worker with the Society, sworn May […], 2010.

17Ms. L.M.’s affidavit chronicles the history, from the Society’s point of view, of its interaction with the Applicant. It details the various allegations made and the response of the Society to each allegation, including communications with the Applicant.

18The Society has brought a protection application before the Court because of Mr. S.B.’s expressions of concern. In other words, the Society says that Mr. S.B. makes many false allegations, and each time he raises a concern, the Society has to investigate. The Society’s fear is that all of these investigations are hurting the children.

19The Protection Application before the Court deals specifically with the way Mr. S.B. raises concerns about the children’s safety, and what the Society does in response. This Board’s jurisdiction is focused on whether the Society has responded to an Applicant’s concerns and how it communicates with him. The Court is going to determine whether the children are harmed through repeated investigations, but in order to do so, it must consider the concerns that the Applicant raised with the Society and the way in which the concerns have been addressed, including the Society’s response to him. The matter before the Court therefore encompasses the issue that would be before this Board, if the application were heard. As such, the subject matter of the complaint is an issue that is before the Court.

20I wish to stress that this Board is not making any conclusions about whether the children are safe with either parent, or whether Mr. S.B.’s concerns about their safety are justified. That is an issue for the Court. The Board is only deciding the question of whether it can even look into the application. Since this matter is before the Court, it cannot also be before this Board.

CONCLUSION

21As noted above, section 68.1(8) of the Act prevents this Board from hearing matters that are before the Court. I find that the complaint raised by Mr. S.B. before this Board, is currently before the Court. The Child and Family Services Review Board has no jurisdiction to hear this complaint.

Heather Gibbs

Presiding Member