SK v. Children’s Aid Society of Oxford County, 2022 CFSRB 60

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SK

Applicant

-and-

Children’s Aid Society of Oxford County

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: December 13, 2022

Citation: 2022 CFSRB 60

Indexed As: SK v Children’s Aid Society of Oxford County (CYFSA s.120)

WRITTEN SUBMISSIONS

SK, Applicant

Self-Represented

Children’s Aid Society of Oxford County, Respondent

Giselle Lutfallah,

Representative

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 CFSRB found the Application eligible to proceed under 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 is receiving. It is alleged that the Society has failed to provide the Applicant with reasons for a decision that affected his interests.

3The Applicant is the ex-partner of a service recipient and her children (the “Children”).

4The Applicant identified the following Issues/Concerns in his Complaint:

1. The Applicant outlined concerns with the Society’s investigation into allegations against him (abuse of the Children; controlling behaviour; poisoning his partner);

2. The Applicant alleged concerns of wrongdoing by Society staff during the child protection investigation;

3. The Applicant alleged that Society staff forced him to move out of the home; and

4. The Applicant alleges that he has not been provided with mental health and housing supports by the Society to address his own history of abuse and its long-term impacts.

5The Complaint also alleged that the Respondent failed to follow a Court Order.

6In its Summary Reply the Respondent argued that the Complaint was not eligible to proceed to the review stage for the following reasons:

• The Applicant was not a parent

• The Allegations lodged against the Applicant by his ex-partner were not verified

• The Applicant’s partner reported to Respondent staff that on June 15, 2021, the Applicant was no longer residing in the shared residence and that the partner had ended the relationship

• The Respondent did not investigate the Applicant’s allegations of physical abuse by his ex-partner as the allegations fell outside the mandate of the Act which focuses on the protection of children

• The Applicant did not specify which Court Order the Respondent failed to follow

• The Respondent provided voluntary service to the Applicant, his former partner and the Children

• The Respondent was offered voluntary services through the Family Violence Counselling Program; however, this was declined as the Applicant was receiving services through the Canadian Mental Health Association

• The Applicant’s demands related to a police investigation of wrongdoing by staff and a financial settlement of $2.5 million were unreasonable which impeded any reasonable review of the Applicant’s concerns

• The Respondent did not force the Applicant to leave the home he shared with his former partner, rather, it supported the partner when she asked the Applicant to the home voluntarily

7In addition, the Respondent provided the CFSRB with a letter from its Legal Counsel informing the Applicant to stop all e-mails to Respondent staff related to the Complaint. If the Applicant wished to pursue the Complaint any further, he was welcome to do so through the CFSRB or the Internal Complaints Review Panel Process. This letter was issued in relation to the Applicant’s daily e-mails to Respondent staff and management between October 14, 2021, and May 4, 2022.

8After a review of the documents submitted by the Applicant and the Respondent, I identified 5 issues which required clarification in order to decide whether or not the CFSRB had the jurisdiction to address the Applicant’s Complaint. The 5 issues were as follows:

1. Was the Applicant a parent or does he have status as a parent pursuant to section 2.2 of the Act (defined above)?

2. Was the Applicant the subject of an investigation by the Society and what was the nature of the investigation?

3. What was and is the nature of the relationship between the Society and the Applicant?

4. What services have been provided to the Applicant by the Society, and do these services fall under the definition of services in section 2 of the Act?

5. Did the CFSRB have the jurisdiction to review the Applicant’s desire to have society staff disciplined and/or removed?

9In addition, given the existence of a cease and desist and harassment notice, the CFSRB requested submissions on whether it was appropriate to conduct a review of the Complaint in writing.

10The Respondent submitted that the CFSRB did not have the jurisdiction to review the matter. The Applicant was not a parent and did not have custodial rights to the Children. When the former partner was unable to parent the children, they began to reside with their father.

11The Applicant was involved in an investigation based on allegations made by his former partner against him. The scope of the investigation subsequently broadened to include concerns regarding the former partner, as well as the relationship between the Applicant and his former partner. The Applicant was interviewed by Respondent staff during the the investigation. The allegations against the Applicant were not verified. The Applicant was not included in a family support plan as the former partner had ended the relationship with the Applicant during the the investigation.

12The Respondent was no longer involved with the Applicant when his former partner ended her relationship with him. The Respondent did not seek out an Order by the Court to evict the Applicant from the home. The former partner insisted that the Applicant leave the home when the relationship ended.

13The Respondent indicated that it does not provide housing or mental health supports to individuals. It sometimes refers individuals to these services. In response to some of the Applicant’s concerns expressed on October 8, 2021, the Respondent attempted to connect the Applicant with services to which the Applicant indicated he was already connected.

14The Respondent submitted that the Applicant’s desire to have staff disciplined and to negotiate a monetary settlement fell outside the CFSRB’s jurisdiction.

15The Applicant submitted that he had acted in a parental capacity during the time he resided with his former partner and her Children. The Applicant argued that his partner’s abuse impacted him as well as the Children. The Applicant indicated that Respondent staff had encouraged his former partner to end her relationship with the Applicant and to have him removed from the home. The Applicant submitted that Respondent staff offered to assist him in linking with sexual assault counselling and housing supports but never followed up on the offer. The Applicant indicated that he was not heard by the Respondent.

16The Applicant did not provide submissions regarding the format of the hearing. The Respondent indicated that it preferred that a hearing not be held in writing.

THE LAW

17Section 2(2) of the Act defines parent 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 person who have lawful custody of the chid, excluding any person who is unavailable or unable to act, as the context requires

18Section 15(2) of the Act confirms that:

Service providers shall ensure that children and young persons and their parents have an opportunity 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

19Section 120(4)4 of the Act indicates that the following matters may be reviewed by the Board:

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 119(1) as required under subsection 119(2)

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints

4. Allegations that the society has failed to comply with subsection 15(2)

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests

6. Such other matters as may be prescribed

20Section 2(1) of the Act defines service as:

a) a service for a child with a developmental or physical disability or the child’s family

b) a mental health service for a child or the child’s family

c) a service related to residential care for a child

d) a service for a child who is or may be in need of protection or the child’s family

e) a service related to adoption for a child, the child’s family or others

f) counselling for a child or the child’s family

g) a service for a child or the child’s family that is in the nature of support or prevention and that is provided in the community

h) a service or program for or on behalf of a young person for the purposes of the Youth Criminal Justice Act (Canada) or the Provincial Offences Act, or

i) a prescribed service The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

21H.L.B. v. Chatham-Kent Children’s Services (CFSA s. 68), 2012 CFSRB 4 (Can LII 2012-02-01) (para. 51) as follows:

Looking at the statute, the Society’s obligation to provide reasons in section 68.1 (4) 5 is not confined to “parents”. If that were the case, the obligation would be associated with section 2(2) (a) of the Act, like the right to be heard. The right to reasons for decisions that affect one’s interests is broad and recognizes that there may be persons other than parents who are involved with children under the Act and whose lives may be impacted by Society decisions. For example, the Board has held that foster parents or teachers who are the subject of an investigation by a society are receiving a service and are entitled to reasons relating to the decisions made in the investigation. The Board has also held that grandparents who have sought access to their grandchildren from a society that controls access have a right to reasons.

22Rule 8.1 of the CFSRB Rules of Procedure indicates that the CVSRB may conduct hearings orally, in writing, or electronically by teleconference or video-conference. In deciding the format of the 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 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

23I considered whether the CFSRB had the jurisdiction to review the Applicant’s Complaint pursuant to sections 120(4)4 and 120(4) 5 of the Act.

24I turned my mind to whether the Applicant had the right to be heard. I find that the Applicant did not have a right to be heard in relation to Issues/Concerns 3 and 4 as he was not a parent, and he was not in receipt of services from the Respondent related to these 2 Issues/Concerns.

25While the Applicant indicated that he was often in a parenting role, as the partner of his former partner, he never had the lawful custody of the children. The Children remained with their mother and/or were moved to their father’s home.

26Given that the Applicant was not a parent, he is not entitled to be heard pursuant to s. 120(4) 4 of the Act.

27In addition, the right to be heard is related to services that are received from a child protection agency. I note that the Applicant was offered assistance by Respondent staff in relation to counselling and housing services. This offer occurred well after the Applicant was no longer involved with the family. As such, I find that the Applicant was not provided a “service” as defined in section 2.1 of the Act, as services relate to a child and/or the family. The Applicant was no longer part of the family unit.

28In addition, based on my review of the documents provided by the Respondent, I find that there was no meeting of the minds regarding the Respondent’s offer of support services. The Respondent seemed to believe staff were offering to link the Applicant to services in the community and that the offer was not taken-up as the Applicant was receiving support from another mental health agency in the community. The Applicant understood that the Respondent would provide and pay for the support. The Applicant clarified that it did not provide housing or mental health services. Finally, I find that the offer was voluntary in nature as the offer of assistance did not relate to supporting the Applicant as a member of a family involved with the Respondent.

29Given that the Applicant was not a parent and given that he was not in receipt of services in relation to the Children or functioning of the family, I find that the Applicant is not entitled to have his concerns heard by the Respondent in relation to Issues/Concerns 3-4. These issues are dismissed in their entirety.

30I considered the Applicant’s concerns with the investigation and allegations of Respondent staff wrongdoing in relation to the investigation. The CFSRB has held that persons who are subject to an investigation are in receipt of services and are entitled to reasons pursuant to H.L.B. v. Chatham-Kent Children’s Services.

31The Applicant did not indicate in his Complaint that he was not provided with reasons for the non-verification decision or that he was concerned that he was not provide with reasons for the Respondent’s decision. In fact, he was aware of the non-verification decision. The Applicant was concerned with alleged errors in the investigation process and with wrongdoing by Respondent staff during the investigation. Given that he was the subject of an investigation, he is entitled to reasons for the Respondent’s decisions in relation to the investigation allegations against him only (allegations of his attempts to poison his ex-partner; allegations of physical and sexual abuse of the Children; and allegations of his controlling behaviour). These reasons can address the Applicant’s concerns regarding the investigation process as they relate only to the allegations against him and not related to any other child protection concerns or verifications highlighted by the Respondent.

32As such, the CFSRB has jurisdiction to address Issue/Concern 1 as it relates to the particular allegations against the Applicant which were found not to be verified. The Applicant has the right to understand the evidence and thought process Respondent staff used in relation to the investigation and the non-verification decision.

33I have reviewed the documents before me with respect to Issue/Concern 2: allegations of wrongdoing during the investigation. The Application refers to: “neglect of investigation causing bodily harm”. The documents before me indicate that these concerns relate to alleged abuse by the Children’s father towards the Children’s mother (the Applicant’s former partner). The documents identify that the Applicant had some concerns with how Respondent staff addressed the allegations.

34Given that the Applicant is not a parent; he is not entitled to have his concerns in relation to his former partner and the Children’s father heard, including concerns with Respondent staff and their actions or decision-making related to the allegations. The right to be heard is limited to parents and children in the Act.

35For these reasons the CFSRB does not have jurisdiction to hear Issue/Concern 2.

36The Respondent has also indicated that the Applicant wanted certain staff to be investigated and/or dismissed, as well as he wanted financial compensation for alleged wrongdoings. These issues are outside the remedies available to him under section 120(4)4 and 120(4)5 of the Act.

37I note that the Applicant alleged that he was a victim of abuse by his former partners. These issues do not relate to a child protection concern and therefore fall outside the jurisdiction of the CFSRB.

38Finally, as I noted previously in a Case Management Direction dated November 8, 2022, the Applicant’s concerns regarding Respondent staff not following Court Orders falls outside the CFSRB’s jurisdiction and are best addressed at Court.

DECISION

39For the reasons identified above, I find that the Applicant is entitled to reasons related to the investigation process of the allegations made against him and the reasoning for the non-verification decision. The CFSRB has the jurisdiction to review Issue/Concern 1 as per the guidance in H.L.B. v. Chatham-Kent Children’s Services.

40The Applicant is not entitled to have his concerns with the investigation of any other child protection issues to be heard as he is not a parent or Child. In addition, the Applicant has been found not to be in receipt of services. Therefore, the CFSRB does not have the jurisdiction to address Issues/Concerns 2 - 4 pursuant to s. 120 of the Act and they are dismissed.

41Issue/Concern 1 can move on in the review process.

42Any decision regarding the format of the hearing will be deferred until after a pre-hearing/mediation.

43Parties will be contacted by the CFSRB with next steps.

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 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.