J.P. v. Prescott-Russell Services to Children and Adults, 2008 CFSRB 12

CHILD AND FAMILY SERVICES REVIEW BOARD

J.P. v. Prescott-Russell Services to Children and Adults

REASONS FOR DECISION ON JURISDICTION

Date: February 28, 2008

Citation: 2008 CFSRB 12

Indexed as: J.P. v. Prescott-Russell Services to Children and Adults (CFSA s.68)

INTRODUCTION

1On December 18, 2007 the Child and Family Services Review Board (the “Board”) received an application from the Applicant regarding a complaint against the Services to Children and Adults of Prescott-Russell (the “Services”) pursuant to Section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”). The Applicant complained that the Services did nothing when she raised a concern that her son had been sexually molested during the period he was living with his father. She complained that the inaction of the Services at that time created a snowball effect, making things much worse later on, for her son and her family.

2On December 20, 2007 the Board determined that the Applicant’s application was eligible for review under Section 68.1(4)4 of the Act. The Services sent a provisional response on December […], 2007, and a summary reply on December […], 2007. The Services submit that the complaint is not reviewable by the Board on the grounds that the complaint deals with an issue that has been decided by the Court or is before the Court, pursuant to subsection 68.1(8) of the Act. The Board determined on January 11, 2008 that an oral hearing would be held.

3A hearing was held on February 15, 2008 in Ottawa. The Services was represented by Sylvie Godin and John Page. The Applicant represented herself. The hearing was confined to the preliminary jurisdictional issue raised by the Services.

4At this stage of the proceedings, the Board must decide whether the subject matter of the Applicant’s complaint is before the Court.

BACKGROUND

5The Applicant has a son, K.P. (date of birth December […], 1995). The Applicant and K.P.’s father separated several years ago. The Applicant describes K.P.’s diagnoses as: “attention deficit disorder, oppositional defiant disorder, attachment disorder and a mild mental retardation”. The Services has been involved with the family since March, 2004.

6The Services filed a protection application respecting K.P. on November […], 2005. The Court ordered that K.P. was in need of protection, and placed him in the care and custody of his mother (the Applicant), under supervision of the Services. Several temporary orders were subsequently made to this effect.

7On September […], 2006 at the request of the Applicant, K.P. was placed under the care and custody of the Services. He has been living with foster parents and in group homes since that time. Presently, K.P. is in a treatment group home. At first, the Applicant was granted access twice per week, which was reduced to once per month on September […], 2007. There is a pending Court application by the Services for K.P. to be named a Crown ward with no access.

8The Applicant claims that she has made great strides in improving her lifestyle, so that she is now able to care for K.P. She complains that she was not listened to by the Services when she raised a concern that K.P. had been sexually abused, while in his father’s care. The Applicant pointed to a number of references to her concerns in the Services’ documents, proving she raised the issue, yet feels there was no assistance provided to her while K.P. was in her care, and there has been no follow-up action taken by the Services on this point.

MOTION

9The Services submit that all of the issues raised by the Applicant in her complaint are before the Court and therefore the Board has no jurisdiction to hear them, pursuant to s.68.1(8). The Services also request that, if the Board finds that it does have jurisdiction, the hearing on the merits should not take place until after the Court decision has been rendered.

10Section 68.1(8)(a) of the Act reads as follows:

68.1(8)(a) The Board shall not conduct a review of a complaint under this section if the subject of the complaint is an issue that has been decided by the court or is before the court.

11The gist of the Services’ argument is that the phrase “issues before the Court” must be taken to mean issues that have been placed before the Court. John Page, counsel for the Services, argues that the purpose of this provision is to prevent duplication.

12Mr. Page points out that the Applicant, in her affidavit to the Court responding to the Services’ application for Crown Wardship, made factual allegations and raised the specific issue that is before this Board, i.e. whether the Services acted upon her concerns that K.P. was sexually abused. Mr. Page argues that the conduct and behaviour of the Services will be in issue in the upcoming trial, because the Applicant believes the Judge should consider the Services’ actions when coming up with his or her decision. It is impossible to tell beforehand, where the Court will go with the matters put before it.

13Mr. Page argues on behalf of the Services that it would be improper for the Board to hear all this evidence before it is heard at trial for several reasons: (i) he argues that it is not fair that the Services’ witnesses should have to be cross-examined twice on the same evidence; (ii) further, the Court will have to give some weight to the Board’s findings on these issues, and a negative Board decision will be given detailed consideration and could be legally unfair to the Services in Court; (iii) there is a possible argument of issue estoppel in Court, in that there could be a finding that these matters should not be re-litigated. For this reason, the Services must present all available witnesses and evidence in the Board hearing, as the stakes are high. Mr. Page estimates that the Court case will take 5 days, and that the proceedings before the Board will also take 4-5 days. He also notes that in-house counsel for the Society has been forced to take considerable time out of child protection work, in order to respond to these complaints, which will also be heard in Court.

14He also argues that the remedies requested by the Applicant are outside the powers of the Board. There is no point proceeding with a hearing, he argues, if the Board is unable to grant the Applicant any of her requests.

15The Applicant argues that the Board has jurisdiction to hear her application. She argues that the issue which is before the Court is custody. The issue before this Board is her complaint that the Services treated her poorly, by ignoring her concerns. She stated that the Court will not deal with her complaint that the Services treated her badly, and in any event her complaint was filed with the Board prior to affidavits being filed with the Court in the current proceedings.

16The Applicant argues that the Services was aware of her concerns, and of K.P.’s inappropriate sexual activities which may have resulted from the molestation, as early as June 2004 while he was still living with her. She asked for therapy for him before they filed the protection application. The Applicant alleges that had the Services begun treatment for K.P. at that time, it would have helped him a lot with his anger issues. The Applicant feels that the Services discounted her opinions because of her work as an exotic dancer.

17With respect to remedy, the Applicant argues that her lawyer (representing her in other matters) told her she could ask for the remedies listed in her written submissions. She stated that she approached the Ombudsman’s office, where she was told that it was a matter for the Board. She is frustrated that now before the Board, it is being argued that there is no jurisdiction here, either. She asks rhetorically, if she can’t make a complaint to this Board, where should she go?

ANALYSIS

18There are two key points which must be clear before the Board can decide whether it has jurisdiction to hear an application: firstly what is the “complaint”, and secondly what is the “issue before the Court”.

19The Board understands Mr. Page’s argument to be that the “issues before the Court” are the “issues raised in evidence before the Court”. The Court has the jurisdiction to make findings and orders based on all of the evidence placed before it.

20The Board finds, however, that the “issues before the Court” must be understood as the “issues to be decided by the Court”. Otherwise, no person involved in Court proceedings with a children’s aid society would be able to complain about services received. The Board was designed to review the question of the interaction between a service-provider and its client. The fact that a client complaint is part of the factual context in a custody proceeding does not mean that the particular complaint is before the Court for a determination.

21In our view, the matters to be decided by the Court are who should have custody and access of K.P., and the best interests of the child. The Board clearly does not have jurisdiction over those issues.

22However, whether the Services provided the Applicant with the opportunity to be heard regarding her concerns that K.P. had been sexually abused, and whether it responded in any meaningful way, are not matters to be decided by the Court. There may well be an overlap of evidence in the two proceedings. The Services is free to organize and call the evidence it sees fit, to establish its response to the complaint application, as is the Applicant. This has no impact on the jurisdiction of the Board to hear it.

23Counsel for the Services argues that the application contains two parts, the first alleging inaction by the Services with respect to the abuse issue. The second part is the following: “…from then on the dilemma with the [Services] has escalated; I went to them for help, I had to place my son with foster care and I get to see him once a month supervised for two hours. … I can’t trust the system … the pain, agony and suffering they have caused me…”. Counsel argues this second facet of the complaint opens the door for a long and complicated hearing, into the entire history of interaction between the Applicant and the Services. He argues that it is unfair to the Services to put them to the considerable time and expense to prepare for both a long trial, and a long and complicated complaint.

24While the prospective length of a hearing does not impact on the Board’s jurisdiction decision, the panel nonetheless wishes to comment on this point in order to focus the hearing on the merits and perhaps assist the parties in their preparation for it. The panel finds the complaint relates solely to the Services’ response to the Applicant’s concerns regarding sexual abuse suffered by her son. The panel finds the “second” part of the application to be a reference to the impact on K.P. and her family from the lack of intervention. The general complaint about a “lack of trust” does not fall within Section 68.1(4)4, under which this application was found eligible:

s.68.1(4) The following matters may be reviewed by the Board under this section:

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

25Clause 2(2)(a) provides:

s.2(2)(a) Service providers shall ensure 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.

26The Board will hear the complaint on its merits, with respect to whether the Services provided the Applicant with an opportunity to be heard when decisions were being taken with respect to investigating allegations of sexual assault against K.P., and/or obtaining therapy for him, or other protective actions, as a result.

27It appears that the Applicant’s final goal is to regain custody of K.P., which is something the Board clearly has no power to order. However, we find that the remedy request is not determinative of our jurisdiction. Applicants before this Board are often, as in this case, unrepresented and unfamiliar with legal concepts such as “jurisdiction” and “remedy”. When the Board hears a complaint on the merits, it makes findings and orders independently of what was requested by an Applicant, and in accordance with its powers. In some cases, the goals of the Applicant and the Services may be better served through dialogue and mutual agreement.

CONCLUSION

28The Board denies the motion of the Services regarding this complaint and will proceed to hear the complaint, as described above, on its merits.

29A further pre-hearing conference has been scheduled for 9:15 a.m. on March 3, 2008, in order to schedule a hearing date in this matter, to hear a motion by the Services regarding postponing the start date of the hearing until Court matters are completed, and to discuss evidence and witnesses to be called at the hearing.

Heather Gibbs Presiding Member

Gail Gonda Board Member

Wendell White Board Member