JB v. Dnaagdawenmag Binnoojiiyag Child and Family Services, 2021 CFSRB 80

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JB Applicant

-and-

Dnaagdawenmag Binnoojiiyag Child and Family Services Respondent

DECISION

Adjudicator: Daniel McSweeney Date: November 12, 2021 Citation: 2021 CFSRB 80 Indexed As: JB v Dnaagdawenmag Binnoojiiyag Child and Family Services (CYFSA s.120)

WRITTEN SUBMISSIONS

Dnaagdawenmag Binnoojiiyag Child and Family Services, Respondent Thomas Milne, Counsel

INTRODUCTION AND BACKGROUND

1This is an Application (“Complaint”) filed with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

2The Complaint was found eligible pursuant to sections 120(4)4 and 120(4)5 of the Act. It is alleged that the Applicant was not given the 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 received; and the Respondent is alleged to have failed to provide the Applicant with reasons for a decision that affected his interests.

3The Applicant is the father of two daughters (the “Children”). In the Application the Applicant alleged the following:

1. Respondent Worker (JB) is biased against him which has resulted in her alienating him from his 2 daughters through actions such as requiring access visits at the office rather than at the Applicant’s home; and
2. The Respondent has not heard the Applicant’s request for a new worker.

4In its Summary Reply, the Respondent argued that the CSFRB did not have jurisdiction to address the Issues/Concerns in the Application for two reasons.

5Firstly, the Respondent argued that issues of custody and access are currently before the Court. As such the CFSRB does not have jurisdiction to address these issues pursuant to s. 120(8) of the Act.

6Secondly, the Respondent argued that the Applicant never submitted a complaint in writing with the Respondent and has not met with the Internal Complaints Review Panel (ICRP). There is no determination by the Respondent in relation to his complaint.

7In a Case Management Direction (CMD) dated October 6, 2021, the parties were asked to provide submissions on the CFSRB’s jurisdiction to hear the Application as it related to section 120(8) of the Act. The Respondent provided submissions; however, the Applicant did not provide jurisdictional submissions.

8The Respondent submitted that the impact of any decisions regarding the Applicant’s parenting time are issues that are before the Court and therefore the CFSRB is precluded from addressing this issue.

9The Respondent also argued that the second matter (denial of a request for a new worker) was ineligible for review as no complaint was made by the Applicant under section 119; and therefore the complaint does not fit squarely within any of the enumerated matters under section 120(4).

10The Respondent included Court Endorsements dated July 21, August 31, and September 23, 2021.

THE LAW

11Section 120(8) of the Act states that the:

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

12The 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).

13Section 120(1) of the Act states:

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 119 and make the complaint directly to the Board under this section; or b) Where the person first makes the complaint to the society under section 119, submit the complaint to the Board before the society’s complaint review procedure is completed.

14The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or video-conference. 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

15I turned my mind to the 2 jurisdictional issues raised by the Respondent.

16Firstly, section 120(8) of the Act 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.

17I find that the Endorsements dated August 31, 2021 and September 23, 2021 address the Respondent’s role in relation to access. The August 31, 2021 Endorsement indicates: “CAS is involved in this matter and has been assisting the parties with respect to the respondent’s parenting time. The Applicant alleges that the Respondent misuses substances and requires supervision.” In his September 23, 2021 Endorsement, Justice Douglas indicated that the reasons for supervision by the Respondent were not clear.

18Given these endorsements I find that the CAS’s role and actions related to supervised access (Issue/Concern 1 above) are issues that were placed clearly before the Court. As such, the CFSRB does not have jurisdiction to address any Issue/Concern 1 related to supervision and access conditions pursuant to s. 120(8) of the Act.

19I considered the second issue of jurisdiction raised by the Respondent. The Respondent argued that a complainant needed to have made a formal complaint to the Respondent pursuant to section 119 before remedies available to him under section 120 are available to him.

20My reading of sections 119 and 120 is that an applicant has the option to raise a complaint under section 119 or under 120 and an application under section 119 does not preclude consideration of an application under section 120. Section 120 (1) indicates that an applicant may make a complaint under section 119 directly to the Board under section 120. In fact, the same section allows an applicant to submit concurrent complaints to a Society as well as to the Board.

21The Respondent is correct that the remedies under section 120(4) 1, 2, and 3 are not available to an Applicant without first submitting a formal complaint pursuant to s. 119; however, the remedies available to the Applicant under sections 120(4) 4 and 5 include a finding that an applicant was not heard; or was not provide with reasons for a decision that affected his/her interests are not dependent on the issuance of a formal complaint to a society under section 119.

22For these reasons, I find that the CFSRB has jurisdiction to address Issue/Concern 2.

23I considered the format of a hearing into Issue/Concern 2 based on the Respondent’s submitted concerns with the Applicant’s behaviour and worker safety. The Applicant was described as rude and derogatory towards Agency Workers, and purposely broke rules.

24Given the narrow issue remaining (the Applicant’s request for removal of the Worker); I have decided to request submissions and any additional evidence from the parties on whether this issue can be decided through a written hearing.

DIRECTIONS

25The Respondent will provide any submissions regarding the format of the hearing to the Applicant and the CFSRB on or before Friday, November 26, 2021. The Respondent may also share with the Applicant and the CFSRB any additional documents in support of its position regarding the request for the removal of the particular worker.

26The Applicant will provide submissions regarding the format of the hearing, any response to the Respondent’s submissions, and any additional evidence regarding the request to remove the worker and the Respondent’s decision regarding the request to the CSFRB copied to the Respondent on or before December 3, 2021.

27The CFSRB will decide next steps based on the submissions.

28The CFSRB may issue further directions as needed.

DECISION

29For the reasons identified above, I find that the CFSRB does not have the jurisdiction to address Issue/Concern 1 as these are issues that have been or are currently before the Court.

30The CFSRB will consider Issue/Concern 2 based on the parties’ submissions.

CONFIDENTIALITY ORDER

31Pursuant 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 this Application, 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.