J.L.W. v. Huron-Perth Children’s Aid Society, 2008 CFSRB 8

CHILD AND FAMILY SERVICES REVIEW BOARD

J.L.W.

v.

Huron-Perth Children’s Aid Society

REASONS FOR DECISION ON JURISDICTION

Date: February 14, 2008

Citation: 2008 CFSRB 8

Indexed as: J.L.W. v. Huron-Perth CAS (CFSA s.68)

Related Decisions: Reasons for Decision on Jurisdiction - J.L.W. v. Huron-Perth CAS (CFSA s.68), 2008 CFSRB 25

INTRODUCTION

1On October 19, 2007, the Child and Family Services Review Board (the “Board”) received an application from J.L.W. regarding a complaint against the Huron-Perth Children’s Aid Society (the “Society”) pursuant to Section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). Ms. J.L.W. complained that the Society gave her no other choice but to voluntarily sign over care for one of her children E.W2. as she did not want to risk losing another child, E.W1..

2The Society argued in a preliminary motion that the Board did not have jurisdiction to hear Ms. J.L.W.’s complaint on the ground that all of the matters raised by her are before the Court.

3The Board must decide whether the subject matter of the Applicant’s complaint is before the Court.

4The Board concludes that some of the complaints raised with the Board are not before the Court and as such, it does have jurisdiction to review Ms. J.L.W.’ complaint. The Board denies the Society’s motion in part.

BACKGROUND

5Ms. J.L.W. is the mother of J.M. aged 14, E.W2. aged 8 and E.W1., aged 6. Ms. J.L.W. has been a single mother since F.W., the father of E.W2. and E.W1., left home. Ms. J.L.W. had initial involvement with the Society back in the year 2000 regarding her first child J.M.. The Society became involved with Ms. J.L.W. again in February 2006 as a result of allegations of inappropriate discipline. Though the allegations were not verified, the Society remained involved with the family on a voluntary basis.

6In the evidence submitted on her application, Ms. J.L.W. alleges that she was only seeking temporary relief with her boys because they did not have a father, but that the Society gave her no other option but to sign E.W2. into their custody. Ms. J.L.W. contends that she only signed over custody because the Society told her that if she did not, they would take both boys (E.W2. and E.W1.). She felt it would be better to lose one child instead of two. In the pre-hearing conducted on November 27, 2007, Ms. J.L.W. gave a more specific articulation of her concerns as follows:

1. Mr. M.M., child service worker for her son E.W2., bites himself to stay awake. Ms. J.L.W. questioned Mr. M.M.’s ability to effectively carry out the responsibilities of his job as a result of his habit. She would like to have Mr. M.M. removed from her family’s case.
2. The Society filed incorrect information about her case in Court papers.
3. Her son was apprehended because he was found to be in need of protection. While in the custody of the Society however, E.W2. was bitten by a dog and had to receive 21 stitches. One week after sustaining the bite E.W2. was also hospitalized for an infection. Ms. J.L.W. questioned whether the Society was doing a better job of caring for E.W2. than she had done.
4. In a letter dated July […], 2007, P.W., family support worker with the Society, informed her that access time with E.W2. would be cut in half. Ms. J.L.W. was not of the opinion that less time with E.W2. was in his best interest. This issue was clarified at the Hearing as relating to relief time, rather than “access” time.
5. The Society maintains false information on their files about sons E.W1. and E.W2..

7The Society’s position regarding Ms. J.L.W.’s complaint is that it encompasses matters which are before the Court and as such, does not fall under the Board’s jurisdiction to review.

MOTION

8On January 14, 2008, the Board heard the Society’s motion in [ ], Ontario for a determination as to whether the Board has jurisdiction to review this application. Barbara Tuer, counsel, represented the Society while Ms. J.L.W. was without counsel and represented herself. The Society argued that the Board is without jurisdiction because the complaint concerns matters which are before the Court. Prior to engaging in preliminary discussions, the Society and Ms. J.L.W. agreed the pre-hearing matter (No. 4 mentioned above) was not an issue for the Board to deal with as this was an issue before the Court. The parties agreed to remove it from the pre-hearing list. The Board accepted and decided it would hear preliminary motions on the remaining items.

ANALYSIS

9In relation to the remaining 4 issues (excluding No. 4) outlined above, the Society asserted that each of them is a matter that is before the Court and therefore are not matters that the Board could hear by virtue of Section 68.1(8)(a) of the Act.

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

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.

10The Society made the following points in support of its argument:

1. Ms. J.L.W. did sign a temporary care agreement and agreed to the terms.
2. Ms. J.L.W. is arguing that E.W2. should not be in the Society’s care and that he is there only because she did not have a choice. The Court is making a decision on this.
3. There are two applications before the Court in regard to E.W2.. The initial request on May […], 2007 was for a Society ward for temporary removal. The second application on October […], 2007 is for E.W2. to be made a Crown ward and permanently removed. E.W1. would remain in care with Ms. J.L.W. providing she met certain criteria.
4. Ms. J.L.W. filed her complaint with the Board after the Society filed its application in October 2007 to obtain Crown wardship for E.W2. and for a supervision order for E.W1..
5. In response to the issues raised at the pre-hearing:

Issue 3: Apprehension and Care of E.W2..

The issue is whether the Society can take better care of E.W2. than Ms. J.L.W. in view of the dog bite that E.W2. suffered while in the Society’s care. The Court will make a decision on which care is better for the child.

Issue 2: Society filed incorrect information about her case in Court papers.

Ms. J.L.W.’s position that incorrect or false information about her case is in the Court papers is an issue before the Court and something that her assigned counsel will need to address before the Court. The Judge will decide whether the information in the file is inaccurate or not.

Issue 5: The Society maintains false information on their files about E.W1. and E.W2..

The Society’s position on this is the same as in Issue 2. Counsel assigned to Ms. J.L.W. should deal with this as part of the Court proceedings and therefore is an issue before the Court.

Issue 1: Complaint against worker Mr. M.M. and his ability to effectively carry out the responsibilities of his job.

The Society contends that if all of the issues in relation to care are before the Court, that the issue in regards to the specific worker Mr. M.M. must also be before the Court.

6. The Court will decide whether E.W2. should remain in the Society’s care and whether or not he will be made a Crown Ward.
7. The Court will decide whether the Society conducted all the services appropriately. This includes whether the Society is doing enough to assist Ms. J.L.W., the conduct of its workers and the care provided to E.W2..
8. Section 57(8) of the Act outlines the range of decisions that the Court can make in regard to this matter.

11Ms. J.L.W. argued the following:

1. She made reference to the paramount purposes of the Act, namely to act in the best interests of the child and to support families in this interest; she was not offered services to support the children to remain at home.
2. She was not provided with any guidance at the time of her initial involvement with the Society and believed that she had no choice other than to sign the voluntary agreement.
3. The Society is repeating allegations made in the year 2000 that she kicked her son J.M. and called him names. These allegations were not validated and though J.M. is now old enough to provide an opinion on the allegation, the Society did not bother to get his opinion.
4. The Society’s claim that she had requested that E.W2. be brought into care on January […], 2007 is not true; she signed a voluntary care agreement; she met with E.Y. on January […], 2007 (within the number of hours required) to get this changed but was told at the time by Ms. E.Y. that it was not in E.W2.’s best interest.
5. She requested a police report in regard to the dog bite and a child progress report, which she was denied by the Society. The Society wanted fees for the police report but due to her financial situation, she could not afford to pay this fee. The Society also told her that she needed to go through her assigned counsel to get the child progress report.
6. E.W2. is swearing and stealing now after being in the Society’s care and these are things that he did not do before.
7. Though the Society contends that she waited only until an application was made for Crown wardship by the Society before she issued a complaint, prior to October 2007 she had hope for suitable closure. However, the Society’s application for Crown wardship instilled fear into her and caused her to act.

12The Board recognizes the limits of its authority pursuant to Section 68.1 of the Act. However, the Society has not established that all the complaints brought to the Board by Ms. J.L.W. are before the Court pursuant to Section 68.1(8)(a). The Board does not lose its jurisdiction simply because the Court has the jurisdiction to deal with issues of custody and access. The matter before the Court in this case is whether E.W2. should be in the Society’s care, and the mother’s access, in regard to the best interest of E.W2..

1. Issue 1: Complaint against worker Mr. M.M. and his ability to effectively carry out the responsibilities of his job.

13Whether Ms. J.L.W. was heard by the Society regarding her complaint about E.W2.’s worker is not an issue that is before the Court. How the Society dealt with Ms. J.L.W.’ concerns about Mr. M.M. (were they heard, investigated, considered and followed up) will be relevant. The Board finds that it has jurisdiction to consider this aspect of the complaint pursuant to Section 68.1(4).

2. Issue 2: Society filed incorrect information about her case in Court papers.

14The evidence filed by the Society on the Crown Wardship application is clearly an issue that is before the Court. As noted in the Society’s motion materials, counsel for Ms. J.L.W. will have an opportunity to cross-examine on any affidavits filed in Court by the Society, and to present evidence to rebut it. The Board finds that it has no jurisdiction to consider this aspect of the complaint.

3. Issue 3: Apprehension and Care of E.W2..

15The Board has no jurisdiction over the “apprehension” of E.W2. by the Society and whether he should be in the care of the Society or Ms. J.L.W., as this is precisely the issue before the Court. Similarly, whether E.W2. is better protected by the Society than by Ms. J.L.W. is also an issue before the Court.

16However, Ms. J.L.W.’ concerns about injuries and illness suffered by her son while in the Society’s care, insofar as she is complaining about her opportunity to be heard and given reasons for any decisions regarding the child’s treatment/services pursuant to Section 68.1(4) 4 and 5, is within our jurisdiction. The Board has jurisdiction to hear her complaint that she was not able to obtain incident reports and medical information for her son, from the Society.

4. Issue 5: The Society maintains false information on their files about E.W1. and E.W2.. ______________________________________________________

17The Board finds it has no jurisdiction over this issue. Complaints regarding incorrect information in the Society’s files must be dealt with internally by the Society first, before the Board has jurisdiction to review the Society’s response under s.68(5). Should Ms. J.L.W. not be satisfied with the Society’s reply, she may then apply to the Board.

5. Application issue not captured in Pre-hearing Conference (regarding events of January […], 2007 and whether E.W2. was voluntarily admitted or apprehended into the Society’s care). ______________________________

18While this issue was not included in the Pre-Hearing Conference Endorsement Sheet, this complaint arises from the Society’s apprehension of E.W2. on January […], 2007, as noted in Ms. J.L.W.’s written application to the Board of October 19, 2007. The Society, in its summary reply of October […], 2007, addressed this issue and submitted that the Board has no jurisdiction as it is an issue before the Courts. Further, during the jurisdictional hearing, both parties had an opportunity to address this issue. The Society argued that the January […], 2007 apprehension ties to the whole issue of Crown wardship which questions E.W2.’s behaviour leading up to the first meeting and the services offered before the application was made. Ms. J.L.W. complains she was misinformed about what the Society was doing on this day; and that she was not informed of her rights or other possible ways she could obtain assistance, other than apprehension by the Society.

19The Board finds that it has jurisdiction over the following aspects of the events on January […] and January […], 2007:

a. Regardless of whether E.W2. was apprehended by or voluntarily given to the Society on January […], 2007, did the Society, pursuant to Section 68.1(4)4 and 5, listen to Ms. J.L.W. and provide reasons for the decision to take E.W2. into care, including the impact of this decision.

b. On January […], 2007, Ms. J.L.W. expressed concerns in conversation with E.Y. about revisiting the decision and possibly taking back E.W2. into her care. Was Ms. J.L.W. given a chance to express her concerns pursuant to Section 68.1(4)4 and 5 of the Act to be heard and to receive reasons from the Society for the decisions it was taking?

20The Board does not need to hear from any party other than Ms. J.L.W. and the Society in order to determine whether the Society met its statutory responsibilities under Section 68.1 when responding to these concerns. The Board is in a position to determine whether the Society acted in accordance with Sections 68.1(4)4 and 5 of the Act in how it responded to Ms. J.L.W.’s concerns.

21The Board also recognizes that the Society faces a particular challenge in having to deal with the issues of access in the Court as well as the complaints that Ms. J.L.W. has brought forward to the Board. However, the fact that it may be simpler or easier for the Society or any party to deal with all issues in Court is not sufficient grounds for the Board to fail to meet its own statutory responsibilities under the Act. It may be the case that some of the same evidence will be relied on by both the Court and the Board in their respective proceedings; however, overlap of evidence does not take away the Board’s jurisdiction. Furthermore, the remedies afforded by the Court in this case have to do with care and access whereas the Board’s remedies are outlined in Section 68.1(7) as follows:

After reviewing the complaint, the Board may,

(a) Order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) Order the society to provide a response to the complainant within a period specified by the Board;

(c) Order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) Order the society to provide written reasons for a decision to a complainant;

(e) Dismiss the complaint.

22The Board finds that the Society has not established that Ms. J.L.W.’s complaints as noted above are matters before the Court. The Board will proceed to hear Ms. J.L.W.’s complaint on the remaining matters as outlined above.

CONCLUSION

23The Board denies the motion of the Society regarding this complaint and determines that it does have jurisdiction to hear the matter, in part.

Heather Gibbs Presiding Member

Gail Gonda Board Member

David Griffiths Board Member