KYD v. Children’s Aid Society of Toronto, 2023 CFSRB 7

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

KYD Applicant

-and-

Children’s Aid Society of Toronto Respondent

INTERIM DECISION

Adjudicator: Catherine Bickley Date: February 14, 2023 Citation: 2023 CFSRB 7 Indexed As: KYD v Children’s Aid Society of Toronto (CYFSA s.120)

Introduction

1This is an Application 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”): CA22-0049, CA22-0107 and CA22-0108.

2This decision explains why the CFSRB has decided the hearing will proceed in writing.

Background

3The CFSRB found the Application eligible to proceed pursuant to sections 120(4)4 and 120(4)5 of the Act.

4At a January 23, 2023, Pre-Hearing teleconference, the date and format of the hearing were discussed but not finalized. Respondent counsel stated that she and her client could not be prepared for a February 2023 hearing due, in part, to vacation schedules. The Applicant stated that she was not available during March, April or May 2023 due to other commitments including a wedding, travel and social events.

5In a January 27, 2023 Case Management Direction (“January CMD”) the CFSRB directed the parties to provide the following:

• written submissions as to whether the hearing should be held in writing or by videoconference, including their reasons for wanting a written or videoconference hearing; and,
• if their position is that the hearing should be held by videoconference, all their available dates between February 27 and March 10, 2023 and between April 14 and April 28, 2023.

6The Applicant submitted that she would prefer a hybrid teleconference/videoconference and that she was available on February 27, 2023. The Respondent submitted that the hearing should be in writing with its materials to be filed in early March. In the event the CFSRB ordered a videoconference hearing, the Respondent suggested scheduling the hearing between April 14 and April 28, 2023.

Analysis

7Rule 8 of the CFSRB Rules of Procedure provides that the CFSRB may conduct hearings orally, in writing, or electronically by teleconference or video-conference and may conduct a hearing in a combination of formats. For the reasons below, I have concluded that a written hearing is the appropriate format to hear and decide this Application.

The Applicant’s position

8The Applicant made the following brief submission:

I would prefer the upcoming hearing to be videoconference/teleconference.

My reasonings are, I am unable to have access to a secured internet connection. As I have to use public wifi connection. Everyone will have their time to share their part. Videoconference/Teleconference will save time, and is efficient and productive.

The Respondent’s position

9The Respondent submitted that the hearing should be held in writing. It submitted that the reasons the Applicant gave for her lengthy period of unavailability were insufficient. The Respondent also expressed concern that the Applicant would not participate in a videoconference hearing “despite the Board’s offer of resources to assist with this if needed.” The Respondent noted that in child protection proceedings held by videoconference before the Ontario Court of Justice the Applicant and her partner have only participated by telephone.

10The Respondent also submitted that a written hearing would assist in narrowing the issues.

A written hearing is appropriate

11I do not give any weight to the Respondent’s submission that the Applicant may not show up at a videoconference hearing. To date, the Applicant has attended scheduled CFSRB events. I am concerned, however, that the Applicant would not be able to participate effectively in the hybrid format she has proposed, i.e., the Applicant and her witnesses participating by telephone while others participate by videoconference. According to the Respondent, this is how the Applicant and her partner have been participating in child protection court proceedings.

12At the January 23, 2023 Pre-Hearing, the Applicant stated that she has difficulty with videoconferences due to lack of data on her electronic device(s). The January CMD outlined two ways in which the CFSRB could assist the Applicant in participating by videoconference:

If a hearing is held by videoconference before the Applicant departs for Alberta, the Applicant may participate by using one of Tribunal Ontario’s Public Access Terminals at 15 Grosvenor Street in Toronto.

If a hearing is held by videoconference while the Applicant is outside Ontario, Tribunals Ontario may be able to assist in topping up the Applicant’s data so that she can participate by videoconference.

13Either of these options would allay the Applicant’s concerns about not having access to a secure internet connection or sufficient data.

14Despite the offer of the above options for participation by videoconference, the Applicant continues to state a preference for participating by telephone. As noted in the January CMD, I concluded -- based on my observations during the January 23, 2023 teleconference -- that it would be difficult to hold a fair and focused hearing with the Applicant and her witnesses participating by telephone. That leaves the option of a written or fully videoconference hearing.

15In addition, the Applicant maintains that she is only available for a videoconference/teleconference on one out of the 21 dates proposed by the CFSRB. A written hearing will not require the Applicant to attend on a particular date, only that her materials be submitted in advance of a specified date.

16Based on the parties’ availability, a written hearing can be held more expeditiously in this case than a videoconference hearing or hybrid videoconference/teleconference hearing.

17In addition, participation by the Applicant and her witnesses by telephone in a videoconference hearing would not be appropriate. That is not to say that a hybrid hearing is never appropriate. But, based on the difficulty in maintaining the Applicant’s focus and the numerous interruptions during the January 23, 2027 teleconference, I find that in this case a hearing in which the Applicant and her witnesses participated by telephone would not be fair and focused.

18For these reasons, I conclude that a hearing in writing is the appropriate format for hearing and determining this Application.

Next step

19The CFSRB will provide the parties with a Case Management Direction providing further direction regarding the written hearing including the dates on which their materials must be filed with the CFSRB.

Order

20The hearing will proceed in writing.

Confidentiality order

21Pursuant 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.