R.N. v. Dufferin Child and Family Services, 2014 CFSRB 15

CHILD AND FAMILY SERVICES REVIEW BOARD

R.N.

v.

Dufferin Child and Family Services

REASONS FOR DECISION

Date: March 24, 2014 Citation: 2014 CFSRB 15 Indexed as: R.N. v. Dufferin Child and Family Services (CFSA s. 68)

INTRODUCTION

1On November 25, 2013, R. N. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Dufferin Child and Family Services (the “Society”) pursuant to s. 68.1 and 5 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (the “Act”).

2A pre-hearing conference was held on December 30, 2013. The Applicant complained that the Society had not heard her service concerns or heard her when decisions were made, and had not provided her with reasons for decisions that affected her interests regarding her children, who were the subject of a Protection Application brought by the Society under s. 37(2)(b), (f), and (g) of the Act.

3The Society took the position that the Board did not have jurisdiction to hear the application as the subject matter of the complaint involves issues pending before the Ontario Court of Justice and are therefore subject to s. 68.1(8) of the Act.

4The pre-hearing conference identified the following complaints under s. 68.1(4) 4 and 5 of the Act:

1. Failure of the Society to investigate the Applicant’s complaint regarding: a. father’s failure to consent to counselling for the children; b. verbal manipulation of the child over the telephone during telephone access; c. one of the children’s disclosure that his leg was run over by an all-terrain vehicle (ATV); d. one of the children’s complaint of injury to his private parts from a motorcycle accident; e. father showing children pornographic magazines;
2. The Society did not properly investigate the father when the worker identified the father being manipulative in response to the Applicant’s initial complaint;
3. Procedural requirement was not followed by the Society regarding reunification assessment;
4. Failure of the Society to obtain a copy of the psychological report with respect to the children’s father and stepmother and the Applicant being denied copies of the children’s report cards and academic assessment, changing son’s school without knowledge and taking both children out of the country twice;
5. Inaccurate documentation of the Society regarding case notes and the refusal of the Society to proceed with an Internal Complaint Review Panel (ICRP);
6. The children are not receiving services regarding counselling re domestic violence and parental alienation;
7. The Applicant’s children are not allowed the right to practice their religious faith;
8. The Society’s failure to enforce the Applicant’s ex-spouse to allow telephone access between the Applicant and children;
9. The Society has not followed the views and preferences of [ ] (Applicant’s youngest child) as to where he would like the Applicant to attend hockey games, school activities and live with both parents;
10. The Society’s failure to approve the Applicant’s mother as an access supervisor for supervised visits.

5A jurisdiction hearing was held by the Board on February 27, 2014. The Board heard the parties’ submissions and received exhibits in evidence. The Board reserved its decision. The Board finds in favour of the Applicant on this motion with respect to complaints 1-4 inclusive, and 6-10 inclusive, for the reasons that follow. The Board finds in favour of the Society with respect to complaint number 5 for the reasons that follow.

BACKGROUND

6The Applicant is the mother of [ ] and [ ] (“the children”), who reside with their father, [the father]. The children are the subject of a Protection Application brought by the Society, pursuant to s. 37(2)(b)(ii)(f)(9) of the Act. This matter took 14 months for a final determination on the Society’s Protection Application. The Protection Application began with the apprehension of the children from the care of the Applicant on December 17, 2012, pursuant to a warrant. The matter was concluded on February 24, 2014, by way of a summary judgement motion brought by the Society before the Superior Court. The Court ordered that the children be found in need of protection and placed in the care of their father. The summary judgement motion states that a status review shall follow on August 20, 2014 at 9:30 a. m.

JURISDICTION

7It is the Society’s position that all of the matters enumerated in paragraph 4 of this decision are complaints, the subject of which are issues that have been decided by the court or are before the court and are not therefore reviewable by the Board, pursuant to s. 68.1(8) of the Act. The Board is of the view that a distinction may be drawn between the issues before the court and the evidence of the nature and circumstances of the communication between the workers of the Society and the Applicant. In Children’s Aid Society of Waterloo v. D. D., 2011 ONCA 441, the Court of Appeal, in finding that the Board had jurisdiction to hear the merits of a s. 68 application in an ongoing child welfare proceeding that was before the court, approved the following paragraphs of the Board`s decision:

Issues of substantive child protection, custody and the granting of access are not decided by the Board and fall within the Court’s mandate. Conversely, the Court will rarely examine whether a Society took into account the views and wishes of a parent or provided them with reasons for decisions that relate to the services provided by Societies that might be linked to the steps taken by a Society with respect to an issue that is ultimately before the Court. There may be instances in which a Court has decided an issue that might involve Society process. If the Court has made a finding in this regard, it has decided the matter and that decision is binding. There would be no point in the Board examining an issue that has been finally determined even if it was a matter more typically dealt with by the Board.

8A review of the reasons for judgement on the Summary Judgement Application does not disclose that the Court has decided an issue that involves the Society process, as referred by the Applicant to the Board and identified by the Board at the pre-hearing in this matter.

9The complaints advanced by the Applicant, as set out in paragraph 4 of this decision, with the exception of the allegation by the Applicant concerning inaccurate documentation in point 5, can be reviewed by the Board as matters of communication between Society workers and the Applicant and with regard to reasons for the decisions made by the Society as a result of that dialogue between the Applicant and the Society workers.

10The essence of the matter for review by the Board, pursuant to its jurisdiction under the Act, is in the dialogue between the Applicant and the Society workers and the services provided by the Society. The Board review examines whether the Applicant’s concerns expressed in that dialogue were heard by the Society, how the complaints were received and responded to by the Society, and whether reasons were given for decisions that affected the Applicant’s interests. While reports of that dialogue may be before the court in evidence, the Board’s review concerns the workers’ responsiveness in that communication. These are not the court’s issues. The issues before the court in a protection proceeding at trial or on summary motion are firstly, whether the children are in need of protection and, secondly, if they are in need of protection, what is the best placement for the children and what terms of supervision and parental access are then appropriate.

11The Board sustains the Society’s objection to the Board’s jurisdiction to review the Applicant`s complaint regarding inaccurate documentation in the Society’s records, regarding case notes and the refusal of the Society to proceed with an ICRP. A review by the Board of inaccuracies in the Society’s files and records follows an ICRP pursuant to s. 68(5) of the Act. The Society wrote to the Applicant on February 6, 2013 in response to the Applicant’s letter of complaint dated February 1, 2013. Although the Applicant did not request an ICRP in her letter, the Society informed the Applicant in its response that it could not proceed with an ICRP because “your matter is before the courts”. An allegation of file inaccuracies does concern evidence before the court that is relevant to the protection concern and on which the court may make a finding of fact. As such the matters may be in issue before the court. It is still open for the Applicant to request an ICRP, with respect to file inaccuracies. These matters are not now before the court, as the Summary Judgement Motion was concluded with an Order in the Ontario Court of Justice.

DECISION

12The Board grants the motion of the Society as to complaint number 5 as referenced in paragraph 4 of this decision. The Board does not have jurisdiction and will not proceed to review this matter. The Board dismisses the motion of the Society with respect to the complaints referred to in number 1-4 inclusive, and 6-10 inclusive. The Board will proceed to schedule, at the convenience of the parties, a hearing pursuant to s. 68.1(4) and (5) of the Act.

CONFIDENTIALITY ORDER

13Pursuant to Rules 30.1 and 30.2 of the Board's Rules of Procedure parties and their representatives must not use, share, discuss or disclose Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board's proceedings.

RICHARD LINLEY

_____________________ Richard J. Linley Board Member

GAIL GONDA

_____________________ Gail Gonda Board Member