M.H. v. Jewish Family and Child Service, 2008 CFSRB 101

CHILD AND FAMILY SERVICES REVIEW BOARD

M.H.

v.

Jewish Family and Child Service

REASONS FOR DECISION ON JURISDICTION

Date: December 18, 2008

Citation: 2008 CFSRB 101

Indexed as: M.H. v. Jewish Family and Child Service (CFSA s.68)

Related Decision: Reasons for Decisions on Merits - M.H. v. Jewish Family and Child Service (CFSA s.68), 2009 CFSRB 9

INTRODUCTION

1This is the decision of the Child and Family Services Review Board (the “Board”) on the question of the Board’s jurisdiction regarding the Application of M.H. (the “Applicant”) pursuant to section 68.1 (4) 4 and 5 of the Child and Family Services Act R.S.O. 1990, c. C.11 (“CFSA”).

2The Applicant brought several complaints against Jewish Family and Child Service (the “Society”) to the Board in his application received on August 6, 2008. On August 13, 2008, the Board deemed the complaints eligible for review by the Board under sections 68.1 (4) 4 and 5 of the CFSA. The Society has challenged the jurisdiction of the Board, primarily on the basis that the subject matter of the complaints are issues that have been decided by or are before the court and that therefore, section 68.1 (8) (a) prohibits the Board from conducting a review.

3A hearing on jurisdiction was held on November 7, 2008.

4The issue before the Board was whether or not the subject matter of the various complaints were issues that had been decided by or are before the Court. With respect to one complaint, the Board was asked to decide whether or not it lacked jurisdiction because, in effect, no decision was made at the meeting with Dr. C. and thus the Applicant had no right to be heard.

5The position of the Applicant was that the Board had jurisdiction because the subject matter of his complaints was distinct from what had been or would be decided by the Court in the child protection proceedings and that decisions may have been made at the meeting with Dr. C. to which he was not invited. The position of the Society was that the Board had no jurisdiction, as set out above.

6For the reasons that follow, the Board has decided that it does not have jurisdiction to deal with complaints referenced as number: 1 (a) (Access visits and dance class); 1(b) (Concerns regarding “cancellation” of protection proceedings); 2 (Medical concerns); and 3 (Case notes). The Board has decided that it has jurisdiction with respect to complaints referenced as number 1 (c) (Complaint regarding B.M. and the complaint procedure), 4 (Meeting with Dr. C.) and 5 (Concerns with case worker lying), subject to the comments in these reasons.

7The Applicant’s complaint is grounded in section 68.1 (4) 4 and 5 of the CFSA.

Section 68.1(4) 5 of the CFSA gives the Board the authority to review:

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

Section 68.1 (4) 4 of the CFSA gives the Board authority to review:

Allegations that the society has failed to comply with clause 2 (2) (a)

Section 2 (2) (a) states:

(2) Service Providers shall ensure,

(a) that children and their parents have an opportunity where appropriate 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;

8Under the CFSA, the Board does not have the power to conduct a review in certain circumstances, namely:

68.1 (8) 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 ; or

(b) is subject to another decision-making process under this Act or the Labour Relations Act,1995

BACKGROUND

9The Applicant and his ex-wife had two children, A1., born October […], 1996 and A2., born May […], 1998. The Applicant was also a father figure to his ex-wife’s two children, E. and O. over the course of the marriage. The Applicant and his ex-wife have been involved in protracted court proceedings for approximately ten years, following the end of the marriage. The Applicant was the access parent throughout. In January of 2008, the Society commenced child protection proceedings, seeking that the children A1. and A2. be placed in the mother’s care, under a supervision order because of the extreme parental conflict and its impact on the children. Issues relating to access and how it was carried out were and are a central part of the litigation. In addition, the father’s concern that his ex-wife was taking the children to doctors unnecessarily and his concern that she might have and should be assessed for Munchausen’s Syndrome By Proxy (“MSBP’) form part of the court record. Access issues and medical concerns are, similarly, matters that the Applicant has consistently raised with the Society. The Applicant had access, supervised by a Society program. The Society also had the Applicant and his ex-wife engage a parenting coordinator, Dr. C.. The Applicant was not invited to a meeting with Dr. C. and he has a complaint in that regard.

10The Applicant raised some concerns with the Society. The Society declined to meet with him at a certain point, because it said the matters were before the Court.

11In the context of the child welfare proceedings, the Applicant and his ex-wife, on consent, underwent psychological assessments by Dr. W.. In July of 2008, the Court heard two motions: one by the Society to restrict the Applicant’s access to the children and to information and one by the Applicant for several requests relating to access and medical concerns. The Court made rulings relating to the issue of the mother’s alleged MSBP and to access. The Applicant has appealed the interim ruling to Superior Court. The child protection proceedings have not yet gone to trial.

12In its interim ruling on July […], the Court ordered (paraphrased in part)

• No access to A2 by the Applicant.
• A1’s access is on her consent, once a week for one hour supervised by the Society. Should the father act unreasonably or inappropriately, the visit will be terminated. The children shall not be removed from camp or other activities to attend visits. No make up visits if a visit is missed or cancelled.
• The father will not have access to the personnel or the records of any third party service provider dealing with either of the children, including treatment providers and activity providers. Service providers shall not contact the father nor make disclosure to the father.
• The children’s school may send the father report cards.
• The children may be referred to therapy at the discretion of the Society in consultation with the mother.
• The father shall not tape etc. any contact with the children

ANALYSIS

13The parties agreed that the following constitute the Applicant’s complaints regarding the alleged failure of the Society to hear him and/or provide him with reasons:

1. That the Applicant has made a number of written complaints to JFCS in the past relating to service sought or received by him that have not been addressed by the Respondent as required by s. 68 and Ontario Regulation 494/06 ( “Written Complaints”).
2. That the Applicant has a number of medical concerns for his children relating to medical treatments which the children are receiving (or not receiving) as directed by their mother and the Applicant believes that his many concerns in this regard have not been heard by the Society and that the Society has not provided the Applicant with any reasons for failing to investigate and respond appropriately to these medical concerns (“Medical Concerns”).
3. That the case note of the meeting between the Applicant and Society case workers on the […] of May, 2008 is inaccurate and that the two case workers involved omitted important considerations from the case notes in order to make the Applicant look bad (“Case notes”).
4. That on December […], 2007, the Respondent scheduled a lawyer’s conference without inviting the applicant or his representative to be present and a number of decisions were made at that meeting involving important matters affecting the interests of the Applicant and the Applicant was not given the opportunity to be represented and heard at this meeting (“Meeting with Dr. C.”).
5. That the case worker lied to the Applicant about why the children were not picked up by their case worker for an access visit to take place at the office of the Society and the complaint by the Applicant is that his concerns in this regard have not been heard by the Society (“Concern that worker lied”).

Complaint 1: [Written](https://www.canlii.org/en/on/laws/regu/o-reg-494-06/latest/o-reg-494-06.html) Complaints

14With respect to Complaint number 1, the Applicant provided the Board with emails dated March 27, March 30 and May 9, 2008 that represent those complaints he had documentation for. He also provided the responses of the Society. For the purposes of these proceedings, the Board identifies these concerns as follows:

1(a) Access visits and dance class;

1(b) Concerns regarding “cancellation” of protection proceedings

1(c) Complaint regarding B.M. and the complaint procedure

15As outlined below, the Society has satisfied the Board that it does not have the ability to address the complaint relating to access visits and dance class [1(a)].

16The Board accepts that the concern over the alleged cancellation of protection proceedings [1 (b)] is in error as the proceedings were not in fact cancelled and the Board will not address this concern.

17The Board has decided that it has the ability to deal with the Complaint regarding B.M. and the complaint procedure [1(c)].

18Further, the Applicant said he had made “a number of” written complaints which were not addressed. However, apart from the written complaints identified above, no other written complaints have been identified with sufficient specificity to warrant individual consideration.

Complaint 1 (a): Access visits and dance class

19The Applicant’s daughter wished to participate in a dance team event. There was a request that the Applicant re-schedule his access visit to accommodate the dance event. The Applicant raised concerns about the propriety of the Society’s accommodating the request to re-schedule access to facilitate his daughter, A1’s wish to participate in the dance team event.

20The Board does not have jurisdiction to address the Applicant’s complaint relating to access visits and dance class. This is so because Justice Curtis, in her ruling on the two motions, dated July […], 2008 specifically dealt with the subject of the complaint. That is, she addressed the issue of the conflict between activities that A1 wanted to participate in and access visits. The Court ordered access to the Applicant, subject to A1’s consent and stated:

The children shall not be removed from camp or activities to attend visits. (July [ ], p 7)

21In effect, the Society had no decision making powers relating to access and thus, the propriety of their conduct in terms of listening to the Applicant’s concerns, could not be questioned by the Applicant.

22A1 had absolute discretion to attend or not attend access visits even if the reason for choosing not to attend related to an activity such as dance. The issue of scheduling vis a vis the activities of the child as opposed to the wishes of the Applicant, was squarely before the Court. The Society’s motion was to restrict access and move supervision from the Therapeutic Access Program to Society direct supervision. A1, through her counsel, the Office of the Children’s Lawyer, sought that access be only with her consent. On July […], in his submissions, counsel for the child, A1 specifically raised her request that she be permitted to re-schedule or cancel visits and that if she had an activity that fell on an access day, she be permitted to decide whether to attend or not. Counsel for A1 also specifically addressed what he perceived to be the Applicant’s concern that A1’s activities were planned by her mother to thwart access.

23The Board is satisfied that it lacks jurisdiction with respect to this concern as it was decided by the Court.

Complaint 1 (c): Complaint regarding B.M. and the complaint procedure

24The Board is satisfied that it has jurisdiction over this complaint. The Board will hear this complaint.

25By email dated May […], 2008 the Applicant raised this concern: “the ill handling or lack of following the complaint procedure where B.M. refused to address my concerns.” Without obtaining further information, the Society replied on May […], 2008 that it would not meet with the Applicant as part of the complaint process because of the exemptions pertaining to “matters in process before Criminal Courts or Family Court through the CFSA.”

26In light of the refusal by the Society to deal with the complaint, the Board will deal with this complaint under section 68.1 (4) 1 of the CFSA, as a Society refusal to proceed with a complaint made by a complainant under subsection 68(1) as required under subsection 68(2).

27With respect to the Society’s argument that the matter was before the Courts, there was no evidence presented at the hearing on jurisdiction to satisfy the Board that the ill handling of the complaint procedure by a specific worker was the subject of the child protection proceedings. The Board reviewed the transcripts and the pleadings and there is no information in them regarding this specific complaint. While the Society can properly decline to hear matters that are before the court as part of their complaint process, under section 68 (12) (a) , there is nothing in the documents or transcripts to suggest that the Society’s failure to follow it’s own process was something the family court would turn its mind to and decide upon. The issue is not whether the Society was wrong in declining to review the matter but rather, whether the subject matter has been or will be decided by the Court, thus depriving the Board of its ability to review the Applicant’s complaint.

28The Court does not have before it in the child protection proceedings, the issue of whether or not a particular worker failed to follow the Society’s complaint process. This is a matter that can and will be addressed by the Board.

Complaint 2 : Medical Concerns

29The Board has decided that the Applicant’s complaint regarding medical concerns is beyond its jurisdiction because it is a matter that has been decided by and is before the Court.

30Over the course of his involvement with the Society, the Applicant has raised concerns reflected in his Application, that his ex-wife takes the children to doctors unnecessarily and that she suffers from Munchausen’s Syndrome By Proxy (“MSBP’), such that the children are not getting proper medical care. He has requested that the Society investigate his concerns including seeking expert advice and alleges that they have failed to do so. His position is that this concern relates to A1 and A2 who are subject to the child protection proceedings but also to E. who is not the subject of the child protection proceedings.

31The complaint raises issues about the actions of the Society and their alleged failure to hear and respond to the Applicant’s concerns, with reasons for their actions or alleged inaction. The complaint also appears to raise the substantive issue of whether or not the mother had MSBP and whether she manipulated or adversely influenced the proper medical treatment of the children.

32The Applicant’s concerns relating to the mother’s alleged manipulation of medical treatment is a central theme in the child protection proceedings. The Applicant’s concern is at large, with respect to the mother in general. He asserts that she has MSBP and that this has impacted his children, including E.. In a notice of motion, dated February […], 2008, and returnable March […], 2008, the Applicant requests a psychological assessment for E. and an order that the mother cannot take the children to the doctor without a medical emergency. Information regarding the Applicant’s concerns was put before the Court in the child protection proceedings in at least the following contexts:

• Protection Application, dated Jan […], 2008 which includes a request for a psychological assessment of the parents
• Affidavit of B.M., dated Jan. […], 2008
• Notice of Motion of the Applicant, dated February […], 2008, returnable March […], 2008
• Notice of Motion of the Applicant, dated July […], 2008, returnable July […], 2008 in which the Applicant seeks, in part, the following:

1. Instates Dr. W.’s recommendations

a) Court appointed doctor to look at medical concerns

b) Court appointed expert such as CAPP’s H.M. to look into MSBP abuse

c) Court appointed expert to rule on issues of neglect to get care, fabrication and inducement of illnesses

d) Sleep study

e) Counseling for A2 and Mr. M.H. after access

f) Appointment of a Parent Coordinator

g) Unsupervised Access for Mr. M.H.

2. Temporary without prejudice Custody to Mr. M.H. while assessments are completed to rule out medical and MSBP abuse.

3. Prohibits Ms. R.M. from seeking any treatments for the children without consent from Mr. M.H.

• In detail in the submissions of the Parties on July […], 2008 on the Applicant’s and the Society’s motions.
• Ruling of Justice Curtis of July […], 2008
• Notice of Appeal of July […], 2008 Ruling, dated August […], 2008

33The affidavit of B.M. sets out the steps taken by the Society in terms of investigating the Applicant’s concerns about medical issues and seeking expert advice. This information is before the Court not only as part of the overall context, but as part of the debate about the role of the Society in supervising access and whether or not they and the experts involved have been manipulated and influenced by the mother. It is also before the Court as part of the record of the Applicant’s persistent pursuit of the issues relating to medical concerns which allegedly has negatively impacted the children. The Society’s motion included a request that the Applicant not have access to certain treatment records because of his alleged constant assertions about the mother and his interference in medical issues.

34The Applicant made arguments to the Court in his July […], 2008 submissions on his motion dated July […], 2008 about the medical concerns contained in his complaint, including the role of the Society and his ex-wife’s alleged manipulation of the Society and experts. The Applicant went into some detail about the fact that he complained for two years and that finally, the Society “sent what was supposed to be a proper Munchausen’s investigation down to the [hospital].” and the circumstances surrounding this referral. He argued that no investigation occurred despite the Society’s assertion in its submissions on the motion that it did a thorough investigation.

35When hearing submissions on July […], 2008, before making its ruling, the Court specifically advised counsel for the Society:

..what would be most helpful to me is not to feel obliged to respond to the bad faith allegations that Mr. M.H. has made. You attempted to deal with that in your opening and I discouraged you and you may be slightly miffed that I allowed Mr. M.H. then to make those allegations, but it is clear in his material that that’s his position. I understand it and I don’t need to hear from you on that issue.

36In his notice of Appeal of the interim ruling, dated August […], 2008, the Applicant states about the Society:

The Applicant JF and CS have a statutory obligation to investigate abuse and have failed to do so in this case. The learned Motions Judge in her oral reason stated no doctor is concerned for the children. This is not accurate. The Appellant presented evidence that indicated that Dr. L. from the [hospital] had written to the Applicant JF and CS, that should they wish to investigate Munchausen Syndrome By Proxy child abuse, they contact Dr. R.G.. This recommendation was made after the Appellant met with Dr. L. and presented medical evidence supporting the need for such an investigation. The applicant refused to investigate this abuse and have put the children at risk while they are with the Respondent, R.M..

37The Board is satisfied that the subject matter of the Applicant’s complaint relating to whether or not the Society heard his concerns about the mother’s influence over medical issues impacting on proper medical treatment of the children was a matter that was argued before and addressed by the Court in its interim ruling of July […], 2008. The Judge clearly turned her mind to the alleged “bad faith” actions of the Society in rendering her judgment. In the passages from the judgment cited below, the Court also references the role of professionals, which the Board takes to include the Society. It is also clear that the subject matter of the complaint has been raised by the Applicant in his appeal of the interim ruling and is thus a matter that is now before the Superior Court.

38The Board has no power to hear the Applicant’s actual concerns. In any event, in this case, the issue of medical concerns and in particular, the assertion that the mother has MSBP i.e. she is taking the children to doctors unnecessarily, is an issue that has been decided by the court in the interim ruling of July […], 2008. The Court‘s Ruling on the Motion, reads, in part as follows:

Mr. M.H. is a high-energy, articulate and passionate person. He is intense and focused and animated and he is persistent in pressing his view of the situation to all involved who will listen. He is in some ways, on a quest or a mission. He believes that he is in a very serious war regarding the health of his children, the emotion{sic} health of his children and that there is a complex conspiracy working to prevent him from seeing his children.

He is rigid in his belief that his wife is damaging the children, that she takes them to doctors unnecessarily, that the children express views that are not their own, that the children’s views are coming directly from his ex-wife. However, there is not a single professional involved in this family and there have been many professionals involved in this family and involved with these children who agree with Mr. M.H.’s view about this. Let me be clear: These children are not being influenced or poisoned or alienated by their mother….

Mr. M.H. is completely unwilling to even consider that the professionals are correct in their evaluation of his children. He has a complex and highly defended denial system. Mr. M.H.’s insistent involvement in the children’s activities and treatments has caused stress and distress to his children.

39The issues regarding MSBP and taking the children to doctors unnecessarily or otherwise adversely influencing proper medical treatment remain before the Court and may be re-argued and decided at trial. These issues have been raised in the appeal of the interim ruling. Further, these issues are encompassed by the “on-consent”, court-ordered psychological assessment of the mother, which was before the Court in making its ruling of July […], 2008. The Board did not have a copy of the assessment but did have a copy of the Order of January […], 2008 which included an order that the parents undergo an assessment. The Board saw numerous references to Dr. W.’s assessment in the court transcripts on the interim motion.

40In sum, the Board is satisfied that the subject matter of the Applicant’s complaint; namely whether or not the Society heard his concerns about medical issues (which he says would entail an investigation and expert advice) and responded with reasons for their action/inaction is and was the subject of the child protection proceedings, including the interim motions and ruling. The subject matter has also been squarely raised in the appeal of the interim ruling and is before the Superior Court. The Board is further satisfied that the Court has ruled on the merits of the Applicant’s concerns and may hear further argument on this issue at trial. Further, since the Applicant has appealed the interim ruling, the Superior Court will hear argument on the merits of the concerns on appeal. The merits of the concerns are not, in any case, a matter for the Board.

41The Board does not have jurisdiction over this complaint.

Complaint 3: Case Notes

42The Board has decided that it does not have jurisdiction to address the issue of the alleged inaccuracies and omissions in case notes of a meeting held on May 2nd, 2008.

43The case notes go to the core of the dispute over the nature and extent of access. What was actually said in the meeting may have a bearing on the Court’s determination of the Applicant’s insight into his children and into what is the appropriate type of supervision for access. The Applicant raised the issue of the inaccuracy of notes before the Court. The Court deferred examining the issue further until evidence was introduced by the Applicant. The issue of credibility is in this case, inexorably tied to the substantive issues before the Court, which is the forum in which the complainant’s concerns about credibility must be addressed.

44The Board has no jurisdiction to hear this complaint.

Complaint 4: Meeting with Dr. C.

45The Board will hear this complaint.

46The Board is not convinced by the arguments of the Society, on the information presented, that the Board lacks jurisdiction with respect to this complaint.

47The meeting in question was a teleconference with the parenting coordinator, Dr. C.. It took place on December […], 2007. Dr. C., B.M., the family’s Society worker, Mr. G., counsel for the Society and Ms. A.S., counsel for the Applicant’s ex-wife were present at the meeting.

48The Society’s arguments focused on its assertion that no decision was made at the meeting. There was no evidence led about the meeting, except a reference to it in an e-mail from Mr. G. to A.S., copied to B.M., that it was initiated by mother’s counsel and that it was left open to Dr. C. to invite the Applicant. A summary of what was purportedly conveyed at the teleconference was introduced by counsel. It is unclear whether or not decisions about when or if to proceed to court or other decisions were made at the meeting. Without further evidence to the contrary, it remains open to the Applicant to argue that his rights under section 2 (2) (a) of the Act were engaged, his rights were not respected and that his section 68.1(4) 4 complaint is therefore made out.

Complaint Numbered 5: Concerns that the Case Worker Lied

49The Board has jurisdiction to and will hear this complaint.

50The Applicant has provided the Board with the relevant time frame of this allegation: approximately March, 2008.

51This complaint does not relate to a substantive access issue that is before the Court. This complaint relates to the Applicant’s concerns about the conduct of a particular worker in relation to a particular visit and whether or not the Society heard his concerns. The Court is not concerned with the behaviour of individual workers in the day to day conduct of operationalizing access visits. This is distinguished from the issue of the case notes, which in effect, go to the behaviour of the Applicant, an issue which is before the Court. The subject matter of this complaint is not before the Court and has not been decided by it.

52The Board will hear the Applicant’s complaint with respect to his allegation that the Society did not hear his concerns about whether a worker lied about why the children were picked up approximately 45 minutes late for an access visit in or around March, 2008.

CONCLUSION

53The Board has jurisdiction to deal with complaints numbered: 1(c) (Written complaint regarding B.M. and the complaint procedure), 4 (Meeting with Dr. C. and 5 (Concern that worker lied) and will deal with them as set out below.

54The Board will hear complaint numbered 1(c) as a complaint under section 68.1(4) 1 of the CFSA.

55The Board will hear complaints numbered 4 (Meeting with Dr. C.) and 5 (Concern that worker lied).

56The Board has no jurisdiction to hear complaints numbered 1(a) (Written complaint about access and dance class), 2 (Medical Concerns) and 3 (Case notes). Complaints numbered 1 (a), 2 and 3 are therefore dismissed.

Heather Gibbs

Presiding Member

Aida Graff

Panel Member

Sheena Scott

Panel Member