CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
JB
Applicant
-and-
Dnaagdawenmag Binnoojiiyag Child and Family Services
Respondent
DECISION
Adjudicator: Daniel McSweeney
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:
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
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 did 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
Section 120(8) of the Act states that:
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
11The 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).
12Section 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.
13The 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
14In a decision dated November 12, 2021, I decided that the CFSRB did not have jurisdiction to address Issue/Concern 1 in the Application given that issues related to supervised access were placed before the Court and were addressed in 2 Endorsements.
15I considered the Respondent’s argument that the Applicant needed to have made a formal complaint to the Respondent pursuant to s. 119 before remedies available to him under section 120 are available to him. I found that there is no legal requirement for an Applicant to submit a s. 119 complaint before availing himself or herself of the remedies available in section 120 of the Act. As such, I found that the CFSRB had jurisdiction to address Issue/Concern 2 in the Application.
16In the November 12, 2021 Decision, I 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.
17Given the narrow issue remaining (the Applicant’s request for removal of the Worker); I requested submissions from both parties and any additional evidence from the parties on whether this issue can be decided through a written hearing.
18On November 24, 2021, the Respondent provided submissions related to the format of the hearing as well as Issue/Concern 2. The Respondent submitted that a written hearing was appropriate given the reasons submitted in its Summary Response of September 27, 2021.
19The Respondent submitted that, in relation to Issue/Concern 2, Respondent staff have heard the Applicant’s concerns and have provided him with written reasons regarding his request for a new worker.
20The Applicant responded to the Respondent’s submissions in an e-mail dated November 25, 2021. The e-mail read as follows (in the Applicant’s own spelling and words):
“Your agency is a joke just because a father calles (sic) a biased worker out and kindly ask them not to speed doesn’t mean I was trying to intimidate them. I’m sorry you believe the lies any has fallen for but thank god there’s judges for such matters. I’ll summarize my documents tomorrow and have them submitted to the board.”
21The Applicant did not provide the CFSRB with any additional documents or arguments related to the format of the hearing or to his request for a new worker.
ANALYSIS
22Given the Applicant’s negative history and interaction with Respondent staff; and given that the issue of whether the Respondent had heard the Applicant’s request for a new worker was sufficiently narrow and fact based; and given that no party opposed hearing the matter in writing; I found that deciding this issue in writing was the most effective and efficient method of deciding the remaining issue in the Applicant’s Complaint.
23I considered whether the Applicant’s request for a new worker had been heard.
24The Respondent provided a letter sent to the Applicant on October 19, 2021 which addressed his request for the removal of 2 workers from his file. The letter confirmed that Respondent staff received the Applicant’s requests and considered them. The letter indicated that after a review, no bias on the part of Worker D was identified in terms of the support she provided to the Applicant and the Children as well as in terms of decisions that were made regarding the health and safety of the Children.
25The letter explained that the Respondent could remove a worker from a file based on unsupported concerns, and without adequate reasoning, rationale, or evidence.
26The letter also addressed the Applicant’s request to remove Worker ZH as well as the Applicant’s concerns that the worker was speeding on the highway. The Respondent followed-up the Applicant’s concerns with the Worker and she denied speeding. The Respondent found that the Applicant did not provide a valid reason for removing ZH from his file.
27The Applicant did not provide any further submissions on this issue.
28Based on the information before me, the Respondent heard the Applicant’s request to replace the 2 workers. Respondent staff investigated and found that the Applicant’s allegations against the 2 staff were without merit. In this case, the Applicant appears to disagree with the Respondent’s decision not to remove the staff; however, this does not mean that the Applicant’s concerns were not heard and that he was not provided with adequate reasons for the Respondent’s decisions related to the request.
29For the reasons identified above, I find that the Respondent has heard and provided reasons for its decisions regarding the requested removal of the Applicant from his case. As such, I dismiss Issue/Concern 2. Issue/Concern 1 was dismissed in an earlier decision.
DECISION
30For the reasons identified above, I have dismissed Issue/Concern 2. The Applicant’s Complaint is dismissed in its entirety.
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.
Dated at Toronto, December 22, 2021.
Daniel McSweeney
Daniel McSweeney
Member