MR v. Family and Children’s Services of Frontenac, Lennox and Addington, 2017 CFSRB 24

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MR

Applicant

• and -

Family and Children’s Services of Frontenac, Lennox and Addington

Respondent

REASONS FOR DECISION ON JURISDICTION

Date: August 25, 2017

File Number: CA17-0042

Citation: 2017 CFSRB 24

Indexed as: MR v. Family and Children’s Services of Frontenac, Lennox and Addington (CFSA s.68)

INTRODUCTION

1MR and TR (together the "Applicants") jointly submitted an application to the Child and Family Services Review Board (the "Board"), dated February 21, 2017, requesting a review of the actions of Family and Children’s Services of Frontenac, Lennox and Addington (the "Society”), under section 68.1 of the Child and Family Services Act, RSO 1990, c.C11, as amended (the "Act").

2The application identified a number of complaints that affected their interests, both in their roles as foster parents for the Society and as biological parents.

3The application was filed under section 68.1(4)4 and 5 of the Act, which provides parents and children with the right to be fully heard by a society, and provides to persons seeking or receiving services from a Society the right to be given reasons for a decision by a Society when those decisions affect an applicant’s interests.

4TR withdrew from the application on June 21, 2017, and notified the Board of her decision by her letter of that date. The application remains active, with MR now being the sole Applicant.

BACKGROUND

5The Applicants have served as foster parents for the Society. The application contains a number of issues arising from this relationship with the Society.

6The Applicants have four biological sons, and have fostered a number of children during their time as foster parents for the Society.

7Among this group of young persons, consisting of both the foster children and the biological sons, two figure prominently in the dispute between the Applicants and the Society. These two persons will be identified in these Reasons as “the Son” and as “the Foster Child”.

8The Society informed the Board that there is currently a civil lawsuit being pursued by the Applicants against the Society and other defendants including the Ontario Association of Children’s Aid Societies, the local Police Services Board, the Chief of Police, a Police Constable, the Province of Ontario, and a number of Society workers. Subsequently, on October 21, 2015, the Society workers were removed as defendants from the lawsuit. Specified damages sought are $3,000,000.00, plus as yet undetermined special damages. The plaintiffs in the lawsuit are both Applicants and the Son. The lawsuit was commenced on March 7, 2014, and is currently active. The focus of the lawsuit is the early January 2012 allegation of sexual assault made against the Son and which was reported to the police by the staff of the Society and was jointly investigated by the police department and the Society.

THE ISSUES

9There have been Pre-Hearing teleconferences on the following dates: February 28, 2017, May 25, 2017, June 26, 2017, and July 14, 2017.

10The Pre-Hearing teleconference of February 28, 2017, resulted in a Pre-Hearing Report dated April 13, 2017. This Report indicated that the Board had dismissed the Applicants’ applications filed pursuant to sections 61 and 144 of the Act as being outside of the Board’s jurisdiction, and gave the Board’s reasons for its decisions.

11As well, there was a Pre-Hearing Settlement Facilitation Conference report, dated June 1, 2017, indicating that the matters proposed for mediation at the session of May 25, 2017 were not resolved.

12At the May 25, 2017 session, there was agreement that the issues are identified as follows, as documented in the June 1, 2017 Report:

That the Society has not heard the Applicants’ [sic] service concerns or heard him when decisions were made and has not provided him with reasons for decisions that affected his interests, regarding the following:

1. February 2012 investigative procedure and the verification process related to his son.
2. Lack of communication with the Society and being informed related to matters affecting his interests in the decision making process.
3. Safety plan related to his family and involving his son.
4. Lack of correspondence between the Society and his lawyer related to his son.
5. The decision to close the Foster Home.

13Subsequently, at the July 14, 2017 teleconference, the following two issues were added, on consent from both parties, to the above five issues above:

1. The independent review.
2. The Child (name deleted)’s permanency.

ANALYSIS ON JURISDICTION

14The Board must determine if it has the authority to hear this complaint. The Board’s jurisdiction to deal with any application is set out by statute and all of the requirements must be met before the Board has jurisdiction over a matter. The jurisdiction of the Board to review direct complaints to the Board is set out in the Act.

15The following sections of the Act are relevant to this application:

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;

3(1) In this Act, […]

“service” means,

(a) a child development service; (b) a child treatment service;

(c) a child welfare service;

(d) a community support service, or

(e) a youth justice service;

“child welfare service” means

(a) a residential or non-residential service including a prevention service;

(b) a service provided under Part III (Child Protection); (c) a service provided under Part VII (Adoption), or

(d) individual or family counselling; “parent” is defined as

(a) the person who has lawful custody of the child; or

(b) if more than one person has lawful custody of the child, all of the persons who have lawful custody of the child […].

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;

or

(b) is subject to another decision-making process under this Act or the

Labour Relations Act, 1995.

16Two questions need to be addressed:

a) Does the Board have jurisdiction to address any aspects of the application that relate to the Applicants as foster parents for the Society?

b) Does the Board have jurisdiction to address any aspects of the application that relate to matters that are the subject of an ongoing civil lawsuit, launched by the Applicants against the Society?

Jurisdiction – the Applicant's position

17The Applicants, in their application, are very clear on what they see as the matters that they want the Board to review. They write about a number of issues and complaints that affected their interests, both as foster parents and as biological parents. They identify these as follows in their application:

The Complainants, (names omitted), have a number of issues and complaints that affected our interests both as foster parents and biological parents that have not and continue to not be properly addressed by Family and Children’s Service of Frontenac, Lennox and Addington.

The main areas of complaint include: the society was not protecting children and refused to address [the Applicant’s] complaints, the investigation, the safety plan, the independent review, [child’s B.]’s CCSY payments, [child X.]’s permanency, and the inaccurate recordings in our file.

18The above quote from the application is the basis for the seven issues listed earlier.

19In line with their application, the Applicants’ position is that the Board needs to conduct a review of the Society’s actions in this case.

Jurisdiction – the Society’s position

20The Society wrote a letter dated April 24, 2017, addressed to the Board. This letter from the Society quotes as follows from the April 13, 2017, Pre-Hearing Report:

[…] the section 68.1 application for Review is eligible to proceed only insofar as the issues raised concern their biological son and their own interactions with the society as parents of that child when receiving services from the agency.

21The Society’s letter also raised its concerns that the matter may well be outside the Board’s jurisdiction in view of section 68.1(8)(a), given the Applicants’ ongoing lawsuit in this matter.

Board Finding with Regards to Issues Around the Foster Child.

22Under section 68.1 of the Act an applicant making a request to the Board must meet three requirements in order for the Board to have jurisdiction over the matter. The requirements are as follows: 1) the applicant must be a person who sought or received services from a society; 2) the complaint must be in respect to the service sought or received; and 3) the complaint must relate to one of the matters listed in subsection 68.1(4) of the Act.

23The Act provides five definitions of “service” including (c) a child welfare service. The Act further provides four definitions of a child welfare service including (b) a service provided under part III (Child Protection). The matter currently before the Board falls under the child protection portion of a child welfare service. The service requirements for societies in this part of the Act refer to investigations of alleged abuse, protection measures for children and counselling programs for both children and their parents or legal guardians.

24Under s. 68.1, the Board does not have jurisdiction to determine allegations that the Society has failed to comply with the 68.1(4)4. obligation to provide “an opportunity …to be heard”, unless the allegations are in relation to children and their parents, as defined in the Act. This is because s.68.1(4)4. specifically refers to a failure to comply with s.2(2)(a) of the Act. The Applicants do not fall within the scope of this provision because they do not meet the definition of “parents” under s.2(2)(a) with respect to their relationship with the Foster Child.

25The Board also does not have jurisdiction to determine allegations that the Society has failed to comply with the s.68.1(4)5. obligation to provide complainants with reasons for a decision that affects their interests, unless the decision in question is with respect to services sought or received under s.68.1(1). The Applicants do not fall within the scope of this provision with respect to allegations regarding the Foster Child because the complaints regarding the Foster Child were not in respect of a service for their child, as required in s. 68.1(1), but rather for a ward of the Society who is a foster child for whom they provide a foster home placement, or, put another way, the Applicants do not fall within the scope of “a person who sought or received [a] service” from the Society with respect to their relationship with the Foster Child.

26Looking at the specific seven issues outlined in paragraph 13 and 13 above, the Board notes that issues 5, 6, and 7 apply to decisions made by the Society relating to the Foster Child and the Applicants’ role as foster parents, and therefore are not eligible for review under section 68.1:

• Issue 5: The decision to close the Foster Home -- self-evident that it refers to the relationship between the Society and the Applicants as foster parents.
• Issue 6: The independent review – materials supplied by the Applicant make frequent references to the Foster Child having been removed following allegations and charges against the Son following alleged inappropriate behaviours against the Foster Child, and the Society’s re-iteration in the belief of the correctness of its conclusions in its review of the matter.
• Issue 7: The Child (name deleted)’s permanency – the materials submitted make it clear that this refers to the Foster Child.

27The Board finds that the Applicants do not meet the legal requirements for a review of the Society’s actions, namely that the three issues above do not relate to a child of theirs, but are regarding the Foster Child, and this part of the application is therefore outside of the jurisdiction of the Board to conduct a review.

Board Finding with regards to issues around the Son.

28The Son and both his parents are the plaintiffs in the lawsuit that is currently in process against the Society and various other defendants. This lawsuit was initiated on March 7, 2014. It centres on allegations against the Son and the risks that this poses for the Foster Child, and the Society’s decision to therefore remove the Foster Child from the foster home.

29The previously quoted section 68.1(8)(a) of the Act precludes the Board from hearing any application where the subject matter is an issue that is before the court.

30Looking at the specific seven issues outlined in paragraph 12, the Board notes that issues 1, 2, 3, and 4 apply to decisions made by the Society relating to the Foster Child and the allegations that are the subject of the lawsuit, and therefore are not eligible for review under section 68.1:

• Issue 1: February 2012 investigative procedure and the verification process related to his son -- self-evident that it refers to the Applicant’s son, and supplemented by the Society’s letter dated July 12, 2012 to the Applicants focusses on allegations and the charges against the Son relating to another foster child in the home, and had attached to it a copy of the Son’s “Undertaking Given to a Peace Officer”,
• Issue 2: Lack of communication with the Society and being informed related to matters affecting his interests in the decision making process – references by name to the Son’s criminal defence lawyer and to possible plans to have the Son leave the home after the investigation was completed clearly make this issue one that is connected to the current lawsuit.
• Issue 3: Safety plan related to his family and involving his son -- the materials submitted make it clear that this refers to attempts to design a safety plan for the children in the home, after the allegations against the Son. Options that were considered included locking bedrooms at night, certain other children needing to be “protected” from the Son, and the need to know at all times where the Son was in the home.
• Issue 4: Lack of correspondence between the Society and his lawyer related to his son – the materials submitted make reference to two contacts between the Applicant’s family lawyer and the Society, asking from the Society disclosure of workers’ notes about the verification of the alleged incident and of the Society’s “allegations of verification”.

31The Board finds that, because the issues raised relating to the Applicants and their Son are also the subject of the lawsuit currently before the court, this part of the application is outside of the jurisdiction of the Board to conduct a review.

DECISION

32Based on the information obtained during the teleconferences and from the written materials submitted by both parties, the Board finds that all of the seven issues identified previously are centred around either the Foster Child and the Son and/or the lawsuit.

33The Board finds that the Applicants were not seeking or receiving a service from the Society in respect of the Foster Child. As well, based on the information obtained during the teleconferences and from the written materials submitted by both parties, the Board finds that the seven issues listed by the Applicants relate either to the Foster Child and/or are covered in the scope of the lawsuit. The legislation quoted earlier restricts the right of review to certain persons, and prevents the Board from reviewing issues that are before the court. For these reasons, the Board has determined that it does not have jurisdiction to hear the Applicants’ request for a review of this application, and therefore the application is dismissed.

CONFIDENTIALITY ORDER

34Pursuant 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 any 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, except with an order of the Court or the Board, as appropriate.

John F. Spekkens

John F. Spekkens

Presiding Board Member