RB v. Kunuwanimano Child and Family Services, 2023 CFSRB 78

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

RB

Applicant

-and-

Kunuwanimano Child and Family Services

Respondent

DECISION

Adjudicator: Daniel McSweeney Date: September 05, 2023 Citation: 2023 CFSRB 78 Indexed As: RB v Kunuwanimano Child and Family Services (CYFSA s.120)

WRITTEN SUBMISSIONS

Kunuwanimano Child and Family Services, Respondent

Diane Martel, Legal and Service Specialist

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 Applicant is the father of a daughter (the “Child”). The Child and her mother are Indigenous persons. The Applicant is not. The Child was placed in a Customary Care arrangement where she resided with 2 of her siblings and near another sibling. Nearly 2 years after the birth of the Child, the Applicant requested a paternity test and was confirmed as the Child’s father. The Customary Care Agreement was subsequently terminated as the Child’s mother agreed to have the Child placed in the care of the Applicant or a member of his family. The Respondent had concerns with the Applicant’s ability to care for the Child given recent criminal convictions and commenced a Child Protection Application. The Respondent submitted a kinship plan to place the Child in the temporary care and custody of her paternal grandmother with supervised access to the Applicant. A Final Order of Supervision placing the Child with her paternal Grandmother for 6 months was made on May 29, 2023.

3After reviewing the Complaint, I found that the Complaint was 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.

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

1. The Applicant alleged his requests for more information about obtaining access and custody of the Child, including Court dates, had not been heard by Respondent staff;
2. The Applicant alleged that he was not provided reasons as to why he and his mother were given a hard time by Respondent staff in the process of obtaining temporary custody of the Child;
3. The Applicant alleged that he was not provided with reasons why the Respondent supplied false affidavits against him at Court;
4. The Applicant alleged that Respondent staff and management have not heard his concerns regarding the health and safety of the Child while in the care of her mother and maternal relatives; and
5. The Applicant alleged he was not provided with reasons as to why the Respondent supported the placement of the Child with her mother and family rather than with him and his mother.

5In its Summary Reply the Respondent argued that it provided the Applicant with an opportunity to be heard both by Respondent staff as well as through multiple Court proceedings. The Applicant has also been provided with reasons for the Respondent’s decisions regarding the custody and access of the Child.

6The Respondent provided a detailed timeline for its interactions with the Applicant as well as appended multiple documents to its Summary Reply.

THE LAW

7Rule 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

8I considered the format of the hearing. As noted above, the CFSRB can hear complaints and decide them in writing. I have reviewed the documents before me and have found that I have been provided with sufficient information to decide the Issues/Concerns in the Complaint in writing. The Issues/Concerns are simple and are fact driven. No additional oral evidence is required from either party. As such, a review of the Complaint in writing is the most convenient and expeditious process for all parties.

9I considered Issue/Concerns 1 and 2 together as they deal with issues of access and custody.

10I find that the Applicant’s concerns regarding access and custody were heard by Respondent staff, and that the Respondent’s positions regarding these issues were explained to the Applicant by staff, and in documents presented at multiple Court proceedings.

11In its Summary Response, the Respondent indicated that it had child protection concerns with both parents that prevented placement in their care. The Respondent was concerned with the Applicant’s recent criminal charges related to possession of substances and possession of substances for the purposes of trafficking, and his substance use. Respondent staff spoke with the Applicant’s lawyer on July 22, 2022, to explain the Respondent’s position.

12The Applicant was represented at Court on several occasions and had an opportunity to have his concerns and positions related to custody and access heard. The Respondent’s position and reasoning regarding its custody and access decisions were also included in the various documents served on the Applicant.

13The Court documents confirm that the Respondent did not oppose the Child’s placement with the Applicant’s mother, rather it supported a kin placement arrangement with the Applicant’s mother with supervised access by the Applicant. The documents I have before me do not confirm the Applicant’s allegation that the Respondent opposing the Applicant’s plan to have the Child placed in a kin custody arrangement with his mother.

14The Summary Response indicated that Respondent staff spoke with the Applicant about access and custody issues on at least 13 occasions between May of 2022 and August 8, 2023. For example, the Applicant spoke with the Child Protection Worker on October 22, 2022, during which he outlined his plan for access and custody of the Child. The Worker explained that the Respondent required that the Applicant participate in a few in person visits as the Child was not familiar with him.

15The Respondent provided a text message thread in which the Applicant expressed his concerns with Access visits. The Applicant explained that he wanted custody of the Child as he felt that booking a time to see his Child was out of the ordinary and that father/daughter time was important. The Respondent explained that the requirement to arrange access with his mother was directed by the Court.

16Finally, the Applicant spoke to a Worker on June 26, 2023, regarding his concerns with supervised access. The Worker attempted to explain the role of the Applicant’s mother as the primary caregiver for the Child.

17Given the documents before me, I find that the Applicant and Respondent actively engaged in discussions regarding access and custody arrangements for the Child. The Applicant’s concerns were heard and noted, and staff explained its actions as well as how the Court orders impacted on the Applicant’s access.

18The Applicant indicated that Respondent staff did not inform him of Court dates. I note from the detailed timeline provided by the Respondent that the Applicant did not attend 2 Court hearings. I note that the Respondent provided an Affidavit of Service which include the Amended Protection Application; Notice of Motion; and Affidavit General dated January 25, 2023, which confirmed service on the Applicant by e-mail. In addition, the Respondent provided an e-mail from Worker Chantal Turmel to the Applicant confirming an upcoming Court hearing on February 3, 2023, at 3:00 p.m. to address placing the Child in the care of the Applicant’s mother pursuant to a temporary without prejudice Supervision Order.

19The Respondent provided an e-mail conversation with a lawyer dated August 1, 2023. The conversation confirmed that the Counsel was not retained and therefore the Respondent could not provide him with pleadings. The Respondent subsequently disclosed documents to the Counsel on August 25, 2023.

20The Respondent is responsible for serving documents on the Applicant; however, it is not responsible for reminding the Applicant of Court dates or ensuring his attendance at Court. The Applicant was free to contact the Court at any time to verify any upcoming dates. For these reasons, I find that the Applicant’s concern regarding the Respondent’s role in informing him of Court processes had no merit and is dismissed.

21I considered Issue/Concern 3 regarding the filing of allegedly false affidavits with the Court by Respondent staff. I find that, if the Applicant had any concerns regarding documents presented at Court, it was his responsibility to raise these issues with the presiding judge to be addressed at Court. As such, Issue/Concern 3 is dismissed.

22I considered Issues/Concerns 4 and 5 which related to concerns regarding the placement of the Child with her mother or her mother’s family; and the Applicant’s perception that Respondent staff supported the placement of the Child with the mother’s family.

23In its Summary Response, the Respondent indicated that it never sought placement of the Child with her mother or maternal family and that no plan to do so existed or was ever discussed with the parties. Given this, I find that the Respondent could not have preferred placement of the Child with her mother or maternal kin. In addition, given that the Child was not placed with the mother or her family, there would be no reason for the Respondent to have heard the Applicant’s concerns regarding this issue.

24I also note that the Applicant reported concerns with his Child while in the care of the Applicant’s mother on several occasions. Respondent staff heard the concerns and after exploring them decided not to verify them. The Respondent heard the Applicant’s concerns. In this case, the Applicant disagreed with the Respondent’s decision not to verify any protection concerns against the Child’s mother and her family.

25For these reasons, I dismiss Issues/Concerns 4 and 5.

DECISION

26I find that the Respondent has heard the Applicant’s concerns regarding custody and access of the Child both at the staff level and through various Court proceedings. Staff have communicated with the Applicant on these issues on multiple occasions and have explained the Respondent’s position as well as the decisions of the Court. In addition, the Respondent is not responsible for informing or reminding the Applicant of Court proceedings other than serving him with documents. As such, I find that the Applicant’s concerns regarding access and custody were heard by Respondent staff, and Respondent staff provided him with reasons for its custody and access decisions. As such, Issues/Concerns 1 and 2 are dismissed.

27The CFSRB cannot address any concerns with documents presented at Court and therefore Issue 3 is dismissed.

28Finally, the Respondent indicated that it never considered a plan to place the Child with her mother or maternal family and therefore it could not have heard the Applicant’s concerns regarding such a placement. Similarly, given that no plan existed, the Respondent could not have preferred the plan to place the Child with her mother or maternal family members. Staff also heard the Applicant’s concerns regarding the Child’s mother; however, it decided not to verify these concerns. As such, Issues/Concerns 4 and 5 are dismissed.

CONFIDENTIALITY ORDER

29Pursuant 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.