JH v North Eastern Ontario Family and Children’s Services, 2023 CFSRB 116

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JH

Applicant

-and-

North Eastern Ontario Family and Children’s Services

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: December 18, 2023

Citation: 2023 CFSRB 116

Indexed As: JH v North Eastern Ontario Family and Children’s Services (CYFSA s.120)

WRITTEN SUBMISSIONS

JH, Applicant Self-Represented

North Eastern Ontario Family and Children’s Services, Respondent Sonia Migneault, 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 CFSRB found the Complaint 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; and 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 father mother of 3 children (the “Children”). The Applicant raised the following Issues/Concerns in his Complaint:

1. The Applicant alleged that Respondent staff did not hear his concerns regarding the health and safety of the Children while in the care of their mother;

2. The Applicant alleged that Respondent workers did not hear his concerns about the Children’s mother’s domestic violence and the impact this had on the Children;

3. The Applicant alleged that Respondent staff did not hear his explanations and consider the evidence regarding the injuries on the Children’s mother’s body and his explanations regarding the alleged domestic violence before concluding that he was the maltreater; and

4. The Applicant was concerned with the completeness and accuracy of the information regarding him in the Respondent’s files.

4In the Application, the Applicant indicated that the concerns described in his Complaint were currently before the Court.

5In its Summary Response to the CFSRB Complaint, the Respondent argued that the complaints and allegations in the Compliant are matters that are currently before the Court or have been decided by the Court. As such, the Complaint should be excluded from review as the CFSRB does not have jurisdiction to address these issues.

6In addition, the Respondent argued that Respondent staff heard the Applicant’s complaints on many occasions and took steps to address them. The Applicant and his Counsel were provided with oral and/or written reasons for the Respondent’s decisions. The Respondent indicated that the Applicant was dissatisfied with the Respondent’s decisions and would like to overturn the verification decisions.

7The Respondent also highlighted the various ways that the Respondent has attempted to resolve the Applicant’s concerns, including considering his ICRP Complaint. The ICRP Complaint was denied as the Applicant’s complaints (reversal of child protection decisions; changes to case records) fell outside the mandate of the ICRP process.

8In a Pre-Hearing Report dated August 31, 2023, the CFSRB directed the following: the Applicant and Respondent shall provide written submissions on whether the issues in the Complaint are separate and different from the substantive issues before the Court. The Respondent was reminded that Rule 21.2 of the CFSRB’s Rules of Procedure requires a children’s aid society relying on section 120(8)(a) of the Act to provide relevant documents and any Court orders.

9The Respondent submitted that the Applicant failed to identify any wrongdoing by Respondent staff. Staff members at all levels have met with the Applicant, sometimes with his Counsel, to hear his concerns. The Applicant was heard and provided with reasons for the Respondent’s decisions. In fact, the Respondent re-initiated an investigation based on the Applicant’s concerns and reassigned a new worker.

10The Respondent also confirmed that the Applicant is involved in proceedings before the Criminal and Family Courts. Issues related to decision-making authority and parenting time are before the Court, and therefore the CFSRB did not have jurisdiction to review these issues.

11The Applicant’s submissions focused on reviewing the history of the allegations regarding the Children’s mother. In addition, the submissions outlined the Applicant’s dissatisfaction with the responses he received when he reported and turned to the Respondent for support regarding the alleged abuse of the Children by their mother. The Applicant indicated that the Respondent did not provide him with information to support a fair defence. The Applicant also identified his concerns with the Respondent’s disclosure and records regarding his reports and interactions with Workers.

THE LAW

12Section 120(4) of the Act states:

The following matters may be reviewed by the Board under this section:

1. Allegations that the society has refused to proceed with a complaint made by the complainant under section 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 section 15(2).

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

13Section 15(2) of the Act ensures 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.”

14Section 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

15Rule 21.2 in the CFSRB Rules of Procedure indicates:

Where the society take 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; or

b. subject to another decision-making process under the CYFSA, 2017 or the Labour Relations Act, 1995,

the Society must provide submissions in support of its position and attach all relevant documents and any Court orders to their response.

16Rule 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

Jurisdiction

17Before moving on to the Applicant’s allegations that he was not heard or provided reasons for the Respondent’s decisions, I considered whether the CFSRB had jurisdiction to address the Issues/Concerns in the Complaint as these issues were before the Court. In addition, I considered the Applicant’s concerns regarding the accuracy and completeness of the Respondent’s records and disclosure.

18While I note that the Applicant has matters before the Criminal and Family Courts which most likely address the issue of the best interests of the Children; I find that Issues/Concerns 1 - 3 in the Complaint deal with the interaction between the Applicant and the Respondent which are service issues. These service issues are separate and different from those before the Court. As such, I find that the CFSRB has the jurisdiction to review Issues/Concerns 1 - 3 in the Complaint pursuant to s. 120(8) of the Act.

19Issue/Concern 4 dealt with issues of the Respondent’s records and disclosure. These issues fall outside the purview of the CFSRB. I note that the Applicant has been referred to the Office of the Information and Privacy Commissioner of Ontario who is tasked with reviewing concerns regarding records and disclosure.

Review in Writing

20I also turned my mind to the format of the hearing. As outlined above, Rule 8.1 gives the CFSRB has the authority to review matters in writing. I considered the various factors associated with the Rule. Based on the evidence before me, I find that reviewing the Complaint in writing is the most expeditious and efficient approach. The Applicant provided the CFSRB with documents (approximately 110 pages attached to his Application), as well as additional documents sent in after the Application was filed. The Respondent has also provided detailed information in its Summary Response and Submissions. After reviewing the documents, I find that no additional information or oral evidence is required for me to decide the 3 remaining issues in the Complaint. Based on a review of the documents, I find that there is no dispute between the parties that the Applicant and his Counsel were provided an opportunity to be heard. In this instance, the Applicant disagrees with the verification findings. As such, no additional testimony or evidence is required for me to review the Complaint.

21Finally, I am guided by a recent Court Decision (Segura Mosquera v. Child and Family Services Review Board, 2023 ONSC 5142, https://canlii.ca/t/k09p8) which supported the CFSRB’s decision to conduct a hearing in writing. The CFSRB decision explained that the issue being decided was narrow, fact based and did not require additional oral evidence to decide.

Decision on Merits of Application - Was the Applicant Heard and Provided Reasons

22Based on my review of the totality of the evidence, I find that the Respondent has heard the Applicant in relation to Issues/Concerns 1 -3.

23The evidence provided by the Respondent indicates that the Applicant has had multiple telephone conversations and in-person meetings with a variety of staff including the Executive Director, Supervisor, and Service Manager. Telephone or in person meetings in 2023 occurred on: January 11, February 3, February 14, February 15, March 27, May 10, May 26 and June 6. In addition, the Applicant e-mailed his concerns in 2 documents (NEOFACS Complaints 1 and 2) to the Supervisor in January of 2023. The Applicant and his Counsel met with the Service Manager on March 27; and he and his Counsel were informed of the outcome of the investigation on May 10, 2023.

24The documents provided by the Respondent confirm that the Applicant was provided written responses to his conversations with staff in the form of e-mails or letters dated January 20, February 8, May 10, May 26, and June 16, 2023.

25In addition, the Applicant submitted an ICRP complaint on January 23, 2023.

26The Applicant also provided Respondent staff with documents. For example, the Respondent indicated that it received and considered 2 documents entitled NEOFACS Complaints 1 and 2 which were sent to the Supervisor between January 11 and January 20, 2023.

27The various meetings with Respondent staff and the documents provided to the Respondent by the Applicant resulted in the re-opening of the investigation, and the assignment of a new worker. This is evidence that the Respondent heard the Applicant’s concerns and made efforts to remedy his concerns.

28My review of the documents appended to the Complaint confirms that the Applicant provided the Respondent with detailed information regarding his concerns. For example, communication which began with “Good day Sylvie Boudreault” outlined the Applicant’s allegations of abuse at the hands of the Children’s mother, and the impact that witnessing the abuse has had on the Children.

29The Applicant provided 2 Documents “Save my Children” dated June 14 and 20, 2023, along with his Complaint. These documents formed the basis of the Applicant’s ICRP Complaint. The 2 Documents referred to the issues outlined below, as well as his evidence in support of his position regarding the issues. The documents addressed the following:

• The Applicant’s concerns regarding multiple incidents of domestic violence towards him by the Children’s mother in the presence of the Children, and the impact of the violence on the Children;

• The Applicant’s concerns regarding the behaviour of the Children’s mother (coercion, gaslighting, child neglect, swearing at the Children, failure to ensure the Children received vaccines, historic allegations involving the older children, not sending the Children to school, and physical abuse) which he alleged was not heard or was minimized by Respondent staff;

• The Applicant’s concerns regarding the investigation and the Workers assigned to the investigation and the verification findings; including the Respondent’s finding that it did not have concerns regarding the safety of the Children;

• The Applicant’s allegations that the Children’s mother’s medical condition was the cause of bruising which was attributed to alleged abuse by the Applicant;

• The Applicant’s concerns regarding bias by Respondent Workers in assuming that he was the maltreater, and their disregard for evidence to the contrary;

• The Applicant’s allegations that he and his evidence were ignored by Respondent staff when he raised his concerns; including his evidence that the Children’s mother was not honest in relation to her allegations;

• The Applicant’s allegations that Respondent staff misinterpreted his statements and evidence as they were biased against him;

• The Applicant’s concerns that he was not provided with reasons regarding the investigations and their outcomes; and

• The Applicant’s concerns regarding the accuracy and completeness of Respondent records.

30The evidence before me is that the Applicant has had multiple opportunities to share his concerns with frontline staff and management regarding the health and safety of the Children and his allegations of being a victim of domestic violence in front the Children. The Applicant has also had an opportunity to provide his explanation that the bruising on the Children’s mother was not the result of his actions, rather it was a result of her medical condition.

31I note that the Applicant was represented by Counsel during two occasions which he met with Respondent management. The Applicant had the opportunity along with his Counsel to explain his concerns for the Children, as well as his concerns regarding the investigation and the verification decisions.

32Based on my review of the totality of the evidence, I find that the Applicant’s Issues/Concerns were heard by the Respondent on multiple occasions. In fact, the Applicant’s concerns resulted in the reassignment of a Worker and the re-initiation of the Respondent’s investigation. As such, I find that the Applicant was heard by Respondent staff. In this case, the Applicant disagrees with the Respondent’s verification findings; however, this does not mean that he was not heard.

33While the Issues/Concerns identified above do not relate to allegations that the Applicant was not provided with reasons for the Respondent’s decisions, I find that the Applicant was provided with reasons by the Respondent. The Applicant was provided with written reasons for the Respondent’s decisions after each in-person meeting or telephone call. The Applicant and his Counsel attended a meeting in which the Applicant was informed of the outcome of the investigations. The Applicant conceded in the “Save My Children” document that the Respondent provided him with the outcome of the investigations and advised him to seek legal advice. Finally, the Respondent provided the Applicant with written reasons for its decision not to pursue the Applicant’s ICRP complaint.

DECISION

34I find that the Applicant’s Issues/Concerns 1 – 3 outlined above were heard by the Respondent. Issue/Concern 4 falls outside the CFSRB’s jurisdiction.

35The Application is therefore dismissed in its entirety.

CONFIDENTIALITY ORDER

36Pursuant 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.