HV v. Brant Family and Children’s Services, 2021 CFSRB 23

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

HV Applicant

-and-

Brant Family and Children’s Services Respondent

DECISION

Adjudicator: Daniel McSweeney Date: April 08, 2021 Citation: 2021 CFSRB 23 Indexed As: HV v Brant Family and Children’s Services (CYFSA s.120)

WRITTEN SUBMISSIONS

HV, Applicant Self-represented

Brant Family and Children’s Services, Respondent Carole Jenkins, Counsel

INTRODUCTION AND BACKGROUND

1Applications CA21-0015 and CA21-0024 were filed separately with the Child and Family Services Review Board (“CFSRB”) pursuant to section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

2Application CA21-0015 was found eligible to proceed pursuant to section 120(4)4 of the Act: The Applicant was not given an opportunity to be heard and represented when decisions affecting his interests were made, or a chance to be heard when he raised concerns about the services he is receiving.

3Application CA21-0024 was found eligible to proceed pursuant to section 120(4)5 of the Act: The Society is alleged to have failed to provide the Applicant with reasons for a decision that affected his interests.

4I will decide whether the CFSRB has jurisdiction to review both Applications in this decision based on the exclusion of reviews of matters that were before the Court or are currently before the Court (section 120(8)).

5The Applicant is the father of 3 children and grandparent with shared custody of two grandchildren (the “Children”).

6In CA21-0015, the Applicant expressed the following concerns/issues:

1. Concerns related to placement of his son KV in a home where the caregiver’s partner had been convicted with robbery with a knife and has drugs, and child welfare staff have indicated that he should not be around children;
2. Concerns with a neck injury and scratches experienced by the Applicant’s son KV which were determined to be “non-abusive”; and concerns with Respondent staff member’s investigation and findings regarding alleged injuries;
3. The Applicant alleged that he did not receive support from Respondent workers; including failing to look into video calls; not knowing who his worker is and who to talk to;
4. Concerns that the Applicant has not been considered in relation to the permanency planning for the Children
5. Concerns that Respondent staff are not treating him fairly in retaliation for past lawsuits and Court dealings;
6. Concerns that the Children’s mother receives Zoom calls, but he has not;
7. Concerns that the Applicant’s request for a change of workers was not heard by the Respondent;
8. Concerns with the accuracy and truthfulness of Respondent records; and
9. The Applicant is concerned with the Respondent’s failure to provide full disclosure as ordered by the Court.

7In Application CA20-0024, the Applicant identified the following concerns/issues:

10. Concerns that a Respondent staff member has lied under oath; and
11. Concerns with the Plan of Care and its impact on him; including the new requirement to participate in the Child Advocacy and Assessment Program (CAAP).

8In its Summary Reply to Application CA21-0015, the Respondent indicated that the Applicant’s file remains in the investigation stage and is before the Court pursuant to a Child Protection Application. The Applicant has had legal representation throughout the Child Protection proceedings. Some of the Applicant’s concerns were before the Court; and the remaining concerns have been heard by the Respondent.

9In a Case Management Direction (CMD) dated February 23, 2021, the parties were asked to provide written submissions on 3 issues:

1. Are there any issues in the current complaint that are before the Court or have been decided in past Court proceedings?
2. Are there any issues in the current complaint that are not before the Court at present or in the past that can bee addressed by the CFSRB?
3. Should the CFSRB proceed without an oral hearing and make a decision on any issues that are not before the Court or have not been decided by the court based on a review of the materials it has before it?

10The Applicant submitted that the CRSRB has jurisdiction to review his Application as none of the issues in his complaint are before the Court or have been decided by the Court. The Applicant conceded that the Court was aware of the 8 issues he raised in his submissions, and the other issues he raised in his CFSRB Application; however, the Court has not offered any opinion nor has made decisions on these concerns. The Court has not decided any issue regarding alleged misconduct and mistreatment by Respondent staff. A Temporary Care and Custody Hearing is outstanding, and the Court will address his request to have his child protection file transferred. The Applicant argued that his service-related complaints are separate and different from the substantive issues of the Children’s best interests that are before the Court.

11The Respondent argued that the following issues are before the Court or have been before the Court:

• The Applicant’s concerns that he is not being treated fairly and with integrity by Respondent staff;
• The Applicant’s concerns regarding the truth, integrity and credibility of the investigation and Respondent staff handling the investigation;
• The involvement of Respondent Staff in an investigation 7 years prior for which the Applicant was not a party;
• Concerns regarding evidence regarding marks on MM’s arm;
• Allegations that photographical evidence has been altered; and
• Allegations that the Respondent has not complied with disclosure ordered by the Court.

12The Respondent indicated that the following issues were not before the Court:

• The inclusion of KV’s name in a list of children to be placed with their biological mother was an error;
• The level of support he has received from Respondent staff;
• Arrangements for Zoom calls between the Applicant and KV;
• The removal of 2 staff from the Applicant’s file;
• Consultation with a First Nation regarding plans for the Children;
• The Respondent’s hiring of lawyers; and
• Disclosure of the investigation related to KV.

13The Respondent attached 12 documents of approximately 300 pages (affidavits; plan of care; endorsement; case note) which were presented to the Court.

14Both parties endorsed the CFRSB deciding the Application without an oral hearing based on the materials provided by both parties.

15The parties were subsequently directed to provide submissions regarding the CFSRB’s jurisdiction to review the Applicant’s CA21-0024 complaint pursuant to section 120(8) of the Act.

16With respect to CA21-0024, the Applicant’s submissions focused on his concerns with the investigation performed by a particular Respondent staff member and the truthfulness of evidence presented by this worker in Court proceedings. The Applicant cited affidavits by the staff member presented at Court proceedings to support his position. The Applicant also contested statements or facts presented by the Respondent in its Response to Allegations. The Applicant’s submissions did not relate to the CRSRB’s jurisdiction to address the issues in CA21-0024 that were before the Court or are before the Court.

THE LAW

17Section 120(8)(a) of the Act states:

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.

18Rule 21.2 of the CFSRB’s Rules of Procedures states:

Where the society takes the position that the CFSRB cannot conduct a review because the subject of the application is:

(a) An issue that has been decided by the Court or is before the Court;

… the society must provide submissions in support of its position and attach “all relevant documents and any Court orders”.

19The Ontario Court of Appeal ruled in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441, that the mere existence of a child protection proceeding does not automatically bar the CFSRB from reviewing a complaint about the services an individual has received from a children’s aid society. In DD the Court found that complaints about how the children’s aid society had handled the temporary placement of the applicant’s children could proceed before the CFSRB. Those complaints “were separate and different from the substantive issues before the court” (para 35).

20The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or videoconference. Subsection 8.1 of the Rules state:

In deciding the format of a hearing, the CFSRB will consider:

a) whether it is a fair and accessible process for the parties; b) the costs and efficiency of the process; c) the potential for a more expeditious resolution; d) the convenience of the parties; e) the consistency with the CFSRB’s mandate; f) whether the facts or evidence may be agreed upon; g) the estimated duration of the hearing; h) whether the issues for hearing are predominantly legal issues; i) whether oral testimony is likely to be needed; j) any objections to the format of the hearing.

ANALYSIS

21The determinative issue in these Applications (CA21-0015; CA21-0024) is whether the issues in the Applications are before the Court or were before the Court and are therefore subject to exclusion pursuant to section 120(8) of the Act.

22Section 120(8) is clear that the CFSRB cannot conduct a review of a complaint if: “the subject of the complaint is an issue that has been decided by the court or is before the court”. My reading of this section of the Act confirms that the concept of “subject of the complaint” is a broad category that encompasses more than the content of any specific issue raised by a party before the Court. As such, a specific issue may not have been raised in Court proceedings; however, the proceedings may have addressed the broader subject matter included in a complaint.

23After reviewing the materials provided by both parties, I find that all 11 issues identified in paragraphs 6 and 7 above have been raised before the Court or are currently before the Court. The issues were discussed at length in the Plan of Care; and affidavits by the Applicant, his wife, and Respondent staff.

24For example, the Plan of Care dated November 19, 2020 addressed the apprehension of the Children (extreme discipline and abuse and exposure to this); access issues to be at the discretion of the Respondent and Respondent expectations regarding access; ongoing community services required by the Children; services for the Applicant including working with a Family Service Worker; requirement for cooperation between the Applicant and the Respondent including mental health assessments and attendance at parenting programs; cooperation by the Applicant with the CAAP team; and any unique cultural, heritage or traditions that are required for the Children.

25The Plan of Care clearly addressed allegations of abuse related to the Children; It addressed the expectations and interaction between the Applicant and Respondent staff. It also addressed access expectations. Finally, it addresses the requirement for the Applicant to work cooperatively with and meet with the CAAP team which the Applicant referred to in his CA21-0024 Application.

26The Affidavit by GW, Child Protection Worker, dated November 12, 2020 addressed the Indigenous identity of 3 of the Children; the reasons for apprehending the Children; KV’s alleged injuries including photos; requirement to consult with the CAAP; and the lack of cooperation by the Applicant in the investigation. In his updated Affidavit dated November 19, 2020, GW added details regarding the apprehension of the younger Children including comments by a doctor at the CAAP regarding the black eye and mark on one of the Children’s arms, and photos of the alleged injuries.

27The issue of access and access arrangements was placed before the Court. The Applicant provided the Court a letter dated November 15, 2020 addressed to the Respondent which indicated: “Can we please know what access is available to all of us”. This was followed-up with a letter from the Respondent dated November 18, 2020 indicating that Respondent staff did not return his inquiry regarding access, including access on KV’s birthday. Another letter was sent to the Respondent on November 20, 2020 regarding access between KV and his siblings. The Applicant also sent a letter dated November 24, 2020 to the Respondent listing several issues that came up during access. It also indicated that the Applicant received a letter from GW on November 23, 2020 which addressed the issue of access. These documents were presented to the Court by the Applicant all dealt with the issues of access and the Respondent’s actions regarding access. The Applicant was provided with correspondence dated December 16, 2020 discussing Christmas access. As such, I find that the issue of access, was placed squarely before the Court based on correspondence appended to his affidavit of December 7, 2020.

28The Affidavit by KK, a Family Service Worker, dated November 12, 2020 addressed the following: the apprehension of the Children based on risks of harm; the attendance of the Children at the CAAP; breaches to the initial safety plan; injuries on KK and the photographing by GW of the injuries; allegations that the Respondent’s current concerns have been negatively influenced by a case 18 years prior and that staff are operating out of ill will; the Applicant’s request to have his case file moved to Oxford CAS or Ogwadeni:deo; the Applicant’s participation in a mental health assessment and registration in the Caring Dads Program and the Pathways to Performance Program; communication with the CAPP Program; concerns that GW did not respond to his request for assistance in getting into the Caring Families Program; the Applicant’s allegations that the Respondent staff do not support him or like him and have refused access to KV and for M and J; access visits between the Applicant and all the children; the Applicant’s concerns with the Children’s injuries while in foster care; concerns with the statements made by GW and presented to the Court in affidavits and allegations of bias; and the Applicant’s past history with Respondent workers and past civil action against the Respondent.

29The Applicant’s affidavit dated December 7, 2020 addressed issues of a lack of disclosure by the Respondent; his concerns that the Respondent’s apprehension of the Children has harmed them; and the Applicant’s concerns with the statements and evidence provided by Respondent staff member GW.

30The Applicant’s Answer and Plan of Care dated December 8, 2020 indicated that the Applicant and the Respondent have a “contentious history” with child welfare authorities. The Answer also addressed the CAPP assessment. It addressed the Applicant’s access visit history, as well as his concerns regarding alleged injuries to the Children while in foster care.

31The Applicant’s affidavit dated January 27, 2021 addresses the negative history between the Applicant and the Respondent as a result of past civil litigation, the lack of neutrality of the Respondent, and the Applicant’s opinion that the Respondent could not move on from the negative encounters. It addressed another child protection interaction with the Applicant in which the Applicant alleged that the Respondent could not be impartial, and the file was transferred to Hamilton CAS. The affidavit dealt with disclosure issues, including delays and completeness of disclosure, as well as concerns with alleged photo tampering by Respondent staff, and Zoom access to the Children and challenges getting Zoom links; restrictions on the Applicant’s communication with the Respondent; the Applicant’s concerns regarding the physical health and safety of the Children while in the Respondent’s care; results of the CAAP assessment that were inconsistent with the version of events by the Respondent worker. The Worker EW provided an affidavit in response to these allegations dated February 10, 2021.

32The Court also had before it a Child Maltreatment Medical Assessment prepared by the CAAP for MM which addressed concerns about his recent injuries. The Affidavit by GW dated February 12, 2021 addressed the experience of KV at the CAAP program.

33The Affidavit of AT, Child Protection Worker dated February 11, 2021 addressed the historical interactions and alleged conflict between the Applicant and the Respondent. AT indicated:

“With respect to the amended Protection Application before the court, the Vs appear to hold the view that the Brant Society’s actions towards their family are motivated by a bias that the Society has against them. The Brant Society disputes this allegation….The Brant Society is concerned about the conclusion that Mr. and Mrs. V appear to have drawn about this conflict and/or bias issue…I have a concern that Mr. V’s strong negative feelings about the Brant Society and his perception that the Society is biased or in a conflict of interest in providing service to his family may play out within this litigation in a manner that could impact on the planning options going forward for these 5 children. There is a level of hostility and lack of trust by the Vs that is currently interfering with the ability of the Brant Society to form a working relationship with the parents that is focused on the best interests, safety and well-being of the children.”

34The Affidavit goes on to indicate that the Applicant has refused to work with GW, SJ, and KK, all workers associated with the file. The Applicant has sent multiple complaints to the Respondent. He has filed a complaint against GW with the Ontario College of Social Workers and Social Service Workers in which he alleges tampering of evidence, and perjury.

35The Applicant appended to his affidavit a letter from the Respondent to the Applicant refusing their application to foster. The letter indicated that the Applicant presented in a confrontational manner at the time of the application to foster. It went on to indicate that the Respondent was not confident that the Applicant could work as a member of a team given his previous experiences with another Society.

36The Affidavit by the Applicant’s wife dated February 12, 2021 also alleged a conflict of interest between the Respondent and the family based on previous litigation which has led the Respondent to deceive the Court, local medical professionals, and staff at the Children’s school and daycare. The Affidavit addressed “a plan for permanency with the Poplar River First Nations Band”. It also alleged that the Respondent has not supported the family in the way that other child protection agencies have because of the historical conflict. Finally, the Applicant’s wife asked for the file to be moved to another child welfare agency.

37The Applicant raised the issue of “resentment” on the part of the Respondent staff in a letter to the Respondent dated October 12, 2012 which it presented to the Court. The letter also addressed the civil case and the Applicant’s allegations that the Respondent has not followed through on any offers of support, as well as disclosure issues. I note that these issues raised in 2012 are strikingly similar to those in the Applicant’s current complaint (CA21-0015).

38The Applicant raised concerns regarding the placement of KV. This issue relates to custody and access and is best addressed by the Court who has jurisdiction over these issues. In addition, I note that the Respondent has provided evidence that KV was not placed in the home where the Applicant had concerns. Any concerns regarding the health and safety of the Children while in the custody of the Respondent are the responsibility of the Court and not of the CFSRB.

39I note that the Applicant alleged in his complaint that Respondent staff lied at Court and provided false evidence at Court. These concerns are best decided by the Judge who has access to the entire record and can make a determination on this issue.

40The Applicant raised concerns regarding disclosure. This issue was presented before the Court and any failure by a party to adhere to Court ordered disclosure requirements must be addressed by the Court.

41Having reviewed the documents before me, I find that the Applicant had the opportunity to provide evidence and argument to the Court regarding all 11 issues raised in his 2 complaints. The issues raised by the Applicant were not separate and distinct from those argued before the Court. The Court does not have to have decided or made rulings on a particular issue for the CRSRB to find that the subject matter was before or is currently before the Court.

42As such, I find that all the issues in the Applicants’ complaints have been before the Court and therefore the CFSRB is precluded from reviewing these complaints pursuant to section 120(8) of the Act.

DECISION

43Complaints CA21-0015 and CA21-0024 are dismissed in their entirety.

CONFIDENTIALITY ORDER

44Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in these Applications with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.