CG v. Family and Children’s Services of Lanark, Leeds & Grenville, 2024 ONCFSRB 87

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

CG Applicant

-and-

Family and Children’s Services of Lanark, Leeds & Grenville Respondent

DECISION

Adjudicator: Donna A. Wowk Date: August 09, 2024 Citation: 2024 CFSRB 87 Indexed As: CG v Family and Children’s Services of Lanark, Leeds & Grenville (CYFSA s.120)

OVERVIEW

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”).

2On June 12, 2024, the CFSRB issued a Notice of Eligibility providing that the Application was eligible for review under sections 120(4)4 and 120(4)5 of the Act. The ‘right to be heard’ under section 120(4)4 is limited to “children and young persons and their parents”. The Applicant is the paternal grandmother of the three children involved in this matter. The definition of “parent” under the Act does not include grandparents. The Application is therefore not eligible for review under section 120(4)4. My consideration of the jurisdiction of the CFSRB over this Application is under section 120(4)5 of the Act only.

3Section 120(4)5 of the Act provides that the CFSRB may review allegations that a Respondent society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

4The substance of the Applicant’s complaint consists of allegations summarized as follows:

Issue 1: The Applicant alleges that the Respondent has been sharing personal information from her file with other agencies without obtaining proper consent.

Issue 2: The Applicant alleges that the Respondent has been “making demands without any court orders in place” and that she has caught the Respondent lying to her.

Issue 3: The Applicant alleges that the Respondent has brought other agencies into her home without notifying her or disclosing their identities.

5In its Response, the Respondent took the position that the Application is not eligible for review by the CFSRB as the subject matter of the complaint is before the Superior Court of Justice, Family Court, in Brockville (“SCJ”) through two status review proceedings commenced by the Respondent in relation to the children. The Respondent included its Status Review Application in relation to the eldest child, its Amended Status Review Application in relation to the two younger children, and two Court Endorsements dated June 13, 2024.

6The CFSRB issued a Case Management Direction dated June 28, 2024 directing the Applicant to make written submissions on or before July 12, 2024 on whether the issues in the Application are separate and different from the substantive issues before the SCJ. The Case Management Direction further provided that the Respondent may, but was not required to, file a Reply on or before July 19, 2024. Neither party filed written submissions.

7For the reasons set out below, I find that the allegations in Issue 2 and Issue 3 in Paragraph 4 above are within the jurisdiction of the CFSRB whereas the allegations in Issue 1 must be dismissed they relate to matters over which the Office of the Information and Privacy Commissioner has exclusive jurisdiction under Part X of the Act.

ISSUES

8Is the CFSRB prohibited from reviewing this Application because the subject matter of the complaint has been decided by the court or is before the court ?

ANALYSIS

9The Applicant is the paternal grandmother of three children aged 7, 10 and 14 (the “Children”). On June 14, 2023, the Children were found to be in need of protection. The two younger Children were placed in the care of their father subject to a six month supervision order with conditions. The eldest Child was placed in the care of her mother subject to a six month supervision order with conditions.

10As a result of protection concerns, the two younger Children have been in the Applicant’s care since approximately mid-October 2023 and the eldest Child has been in the Applicant’s care since early 2024.

11The Respondent’s Amended Status Review Application in relation to the younger two Children and their Status Review Application in relation to the eldest child both request placement of the children with the Applicant subject to a six month supervision order with conditions. On June 13, 2024, temporary orders were made in the SCC placing the children in the Applicant’s care subject to supervision by the Respondent.

12As noted above, it is the Respondent’s position that the issues raised in the Application are before the Court by way of the status review proceedings in relation to the Children.

13The Court of Appeal for Ontario held in Children’s Aid Society of Waterloo v. D.D., 2011 ONCA 441 (“DD”) 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. The Court in DD also held that where service complaints are “separate and different from the substantive issues before the court”, the CFSRB may review the complaints.

14Below I consider the three Issues set out in Paragraph 4 above, in the context of the status review proceedings currently before the SCJ.

Issue 1: The Applicant alleges that the Respondent has been sharing personal information from her file with other agencies without obtaining proper consent

15Whether or not personal information has been inappropriately shared by the Respondent with other agencies is not an issue that is before the Court in the context of a child protection proceeding. It is an issue separate and distinct from the substantive issues before the SCJ.

16Part X of the Act establishes the rules that service providers, including child protection agencies, must follow in relation to the collection, use, disclosure and managing of personal information.

17The Office of the Information and Privacy Commissioner (“the Commissioner”) oversees Ontario’s privacy laws, including Part X of the Act. Concerns that personal information has been improperly shared are addressed by way of a complaint to the Commissioner.

18For the reasons out above, I find that the CFSRB does not have the jurisdiction to address Issue 1 as it concerns matters that are within the sole jurisdiction of the Commissioner.

Issue 2: The Applicant alleges that the Respondent has been “making demands without any court orders in place” and that she has caught the Respondent lying to her

19The Applicant has not provided particulars of the “demands” she claims were made by the Respondent or the issue(s) about which she alleges the Respondent has lied to her.

20Under Rule 21.1 of the CFSRB Rules of Procedure, the Respondent is required to include in its response to an Application:

a. A response to the allegations made in the application;

b. A brief chronology of the society’s interactions with the applicant during the times relevant to the issues raised in the application;

c. Copies of any documents relevant to the issues raised in the application; and,

d. Any additional facts, issues or allegations on which the society relies.

21Where a Respondent society takes the position that the CFSRB cannot conduct a review because the subject of the application is an issue that has been decided by the Court or is before the Court, Rule 21.2 of the CFSRB Rules of Procedure provides that it must provide submissions in support of its position and attach all relevant documents and any Court orders to the response.

22The Respondent did not provide a chronology of its involvement with the Applicant, it did not respond to the allegations in the Application, and it did not provide evidence to support its position that the allegations in Issue 2 are before the Court or that they have been decided by the Court.

23Based on the material before me, I find that there is no evidence that the allegations in Issue 2 have been decided by the Court or that they are before the Court.

24For the reasons set out above, I find that the CFSRB does have jurisdiction with respect to Issue 2.

Issue 3: The Applicant alleges that the Respondent has brought other agencies into her home without notifying her or disclosing their identities

25The Applicant has not provided particulars of the allegations in Issue 3.

26I apply the same reasoning for Issue 3 as were applied for Issue 2. I find that there is no evidence that the allegations in Issue 3 have been decided by the Court or that they are before the Court.

27For the reasons set out above, I find that the CFSRB does have jurisdiction with respect to Issue 3.

Conclusion

28For the reasons set out above, I find that the allegations in Issue 2 and Issue 3 in Paragraph 4 above are within the jurisdiction of the CFSRB whereas the allegations in Issue 1 must be dismissed it relates to matters over which the Office of the Information and Privacy Commissioner has exclusive jurisdiction under Part X of the Act.

ORDER

29Issue 1 in the Application as summarized at Paragraph 4 above is dismissed for lack of jurisdiction.

30Issues 2 and 3 in the Application as summarized at Paragraph 4 above may proceed to a hearing on the merits.

DIRECTIONS

31The parties will be contacted by a case processing officer to schedule a pre-hearing to prepare for a hearing on the merits of the allegations summarized as Issues 2 and 3 in Paragraph 4 above.

32The opportunity to participate in mediation will be offered at the pre-hearing.

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.