HV and KV v. Brant Family and Children's Services, 2021 ONCFSRB 34

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

HV Applicant

-and-

KV Applicant

-and-

Brant Family and Children’s Services Respondent

DECISION

Adjudicator: Daniel McSweeney Date: May 12, 2021 Citation: 2021 CFSRB 34 Indexed As: HV and KV v Brant Family and Children’s Services (CYFSA s.120)

WRITTEN SUBMISSIONS

HV and KV, Applicants Self-represented

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

INTRODUCTION AND BACKGROUND

1Applications CA21-0037; CA21-0042 and CA21-0043 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 CA21-0037 was filed by HV and is identical to CA21-0042 which was filed by HV (the “male Applicant”). Application CA21-0043 was filed by KV. The Applicants are the parents of 3 children and grandparents with shared custody of two grandchildren (the “Children”).

3The issues in the Applications included the following concerns:

1. The Applicants were concerned with the investigation and the verification of abuse which led to the apprehension of the 5 Children and that the Children were apprehended without a Temporary Care Hearing;
2. The Applicants were concerned with the alleged falsified evidence presented by the Respondent and the testimony of Respondent staff in Court;
3. The Applicants were concerned that the male Applicant’s name will be recorded on the Ontario Child Abuse Register before the allegations are tested in Court;
4. The Applicants were concerned that outside access visits between the Children and their siblings was cancelled which is not consistent with their COVID safety guidelines; that the Children are being kept from seeing their siblings;
5. The Applicants were concerned with the impact of the decisions to deny sibling access on the family;
6. The Applicants were concerned with “AV’s” potentially self-harming behaviour (hair cutting).

4All three Applications were placed on hold pending a jurisdictional decision regarding files CA21-0015 and CA21-0024. On April 8, 2021, I issued a decision dismissing CA21-0015 and CA21-0024 (“the Decision”). In the Decision, I the CFSRB decided that all issues in CA21-0015 and CA21-0024 “have been raised before the Court or are currently before the Court”, and therefore the CFSRB lacked jurisdiction to review those Applications.

5In a Case Management Direction (CMD) dated April 26, 2021, the Applicants were directed to provide submissions regarding whether the CFSRB has jurisdiction to review their Applications. The Respondent was directed to respond. Parties were directed not to provide additional documents other than those provided in relation to their CA21-0015 and CA21-0024 Applications; however, they were directed to make reference to whatever portions of these documents they were relying on in their response to the current Applications.

6The Applicants submitted the following: “K and I are in the opinion that the issues addressed in the above files are not before the court”.

7In response, the Respondent submitted that all the issues in the Applications are issues that are before the Court and therefore the CFSRB does not have jurisdiction to review the Applications. The Respondents provided additional documents in support of their submissions.

THE LAW

8Section 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.

9Rule 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”.

10The 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).

ANALYSIS

11The determinative issue in these Applications 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.

12Section 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.

13After reviewing the materials provided by both parties (including the evidence presented in support of CA21-0015 and CA21-0024, and the Affidavits submitted by the Respondent in relation to the 3 new Applications), I find that all the issues in the current Applications have been raised before the Court or are currently before the Court.

14In my decision dated April 8, 2021 regarding Applications CA21-0015 and CA21-0024 I found that the following issues were before the Court and were therefore excluded from CFSRB review: the reasons for apprehending the Children; concerns regarding the investigation and the evidence of GW (Child Protection Worker); access and access arrangements including access between the siblings and Zoom access concerns; and allegations that Respondent staff lied at Court.

15I will not revisit my jurisdictional findings on these issues. As such, I find that Issues 1, 2, and 4 in the current Applications were squarely before the Court.

16I concur with the Respondent that evidence upon which the Respondent decided to place the male Applicant on the Provincial Child Abuse Register (Issue 3) is squarely before the Court. The Court will make a decision regarding the validity of the Respondent’s child protection concerns. As such, I find that the CFSRB does not have jurisdiction to address Issue 3 given that the evidence and reasoning for the Respondent’s decision to place the male Applicant on the Child Abuse Register will be decided by the Court.

17Principles of fairness and finality in decision-making ensure that the CFSRB does not place itself in a position of making findings of fact that may differ from those made by the Court. This situation would result in an abuse of process as it would undermine the integrity of the administration of justice. The Applicants have placed their issues and concerns squarely before the Court, and the Court is the most appropriate place to have these issues decided. The CFSRB will not support the Applicants’ attempts to forum shop for a different or better result.

18Issues 4 and 5 deal with access between the Children and their siblings. The Affidavit of SJ (Child Protection Worker) dated April 26, 2021 deals with the following issues: inappropriate behaviour of the Applicant, and his adult Children during scheduled access visits; allegations of the trauma caused to the Children through supervised visits; COVID visitation requirements and limits to parents at supervised access visits; and safety concerns with parking lot visits.

19The Affidavit from AH (Child Protection Worker) dated April 26, 2021 addressed the health and medical care, education, and behaviour of all 3 of the Children (AV, JV, and KV). The affidavit also addressed “AV’s” hair cutting.

20The Affidavit from ML (Child Protection Worker) dated April 23, 2021 addressed the fact that the male Applicant’s request for outdoor access was not approved as the area was too large for the Children to be properly supervised and that staff could not hear conversations between the Applicants and the Children. The Affidavit also addressed access issues between the Children and their adult siblings at the end of supervised access. It indicated that these visits were chaotic with children running to and from vehicles in the parking lot which posed a safety concern and delayed the end of visits. The Affidavit also addressed the Applicants’ concerns related to what the Respondent has been putting the family through and their view that they were not being treated fairly or had been treated in a biased manner by Respondent staff. It outlined the Respondent’s concerns with inappropriate conversations between the male Applicant and KV and between the Applicants’ two older children and their siblings in care. It addressed COVID protocols and the Applicants’ requests for outdoor access. It addressed the Applicants’ concerns regarding AK cutting her hair. The Affidavit addressed the reasoning for moving the 3 youngest Children to a different foster home and the male Applicant’s concerns regarding the impact of the move on the mental health of the Children.

21Given the content of the Affidavits cited above, I find that Issues 4, 5, and 6 have been placed squarely before the Court.

22Having reviewed the documents before me, I find that the Applicants have had the opportunity to provide evidence and argument to the Court regarding all the issues raised in the 3 complaints. The issues raised by the Applicants were not separate and distinct from those argued before the Court. That a Court has not decided or made a ruling on an issue is irrelevant for the CRSRB to find that the subject matter was, or is currently, before the Court.

23As 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

24Complaints CA21-0037; CA21-0042; and CA21-0043 are dismissed in their entirety.

CONFIDENTIALITY ORDER

25Pursuant 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.