C.W. v. Family Youth & Child Services of Muskoka, 2010 CFSRB 23

CHILD AND FAMILY SERVICES REVIEW BOARD

C.W.

v.

Family Youth & Child Services of Muskoka

REASONS FOR DECISION ON JURISDICTION

Date: May 31, 2010

Citation: 2010 CFSRB 23

Indexed as: C.W. v. Family Youth & Child Services of Muskoka (CFSA s.68)

INTRODUCTION

1C.W. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) dated February 22, 2010 under section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The Applicant is complaining about the Family Youth & Child Services of Muskoka (the “Society”).

2A pre-hearing was held on March 25, 2010. The Applicant’s complaints were summarized as follows in the pre-hearing report dated April 1, 2010:

1. That the concern of the Applicant of bias by the Society has not been heard and that the Applicant has not been given reasons for the Society intake worker concluding that the Applicant was an abusive person.

2. That the concern of the Applicant with respect to abuse of the children by their mother, and the impact of this on the children, has not been heard by the Society.

3. That the concern of the Applicant about the impact of the mother’s mental health issues on the children has not been heard by the Society.

4. That the Applicant has not been given reasons by the Society for the decision not to remove the children from the care of the mother having regard to the Applicant’s abuse concerns, the Applicant’s concerns for the impact of the mother’s mental health issues on the children, and the seriousness of the information obtained and forwarded to the Society by Peterborough CAS.

3The Society challenged the Board’s jurisdiction to hear this application. The hearing on jurisdiction was held on May 14, 2010.

4The Board has determined that it will proceed to hear the merits of issues numbered 2, 3 and 4 in this application. The Board has determined that it lacks jurisdiction to address issue number 1 relating to bias. The reasons for this decision follow.

5In its motion challenging the jurisdiction of the Board, the Society took the position that each of the identified issues were before the Court and thus, the Board has no jurisdiction. The Applicant’s position is that the Society commenced the child protection proceedings after he filed his application with the Board and that the Board retains jurisdiction over the four issues. The Applicant has not asserted that the Board has jurisdiction over the issue of whether or not his access should be supervised which is an issue that is before the Court.

6In addressing the Society’s motion, the Board has examined whether it has jurisdiction to proceed with the complaint under the eligible grounds: s. 68.1 (4) 4 and 68.1 (4) 5 of the Act, which provide as follows:

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

s.68.1(4)4 Allegations that the society has failed to comply with clause 2(2)(a).

s.68.1(4)5 Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainants interests.

s.2(2) (a)

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.

7The Society relied on s. 68.1(8)(a) of the Act which states that:

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.

BACKGROUND

8The Applicant is the father of three children. He and his former spouse (the mother) charged and counter charged each other with alleged domestic violence. The Society became involved in October of 2009. The criminal charges against the Applicant are outstanding. The Applicant is concerned that his children have been physically assaulted by the mother and that she has mental health issues. He has reported his concerns to the Society. There are outstanding custody and access proceedings.

9The Applicant commenced his application with the Board on February 22, 2010. The Society filed its summary reply on March […], 2010. The Society’s protection application was dated March […], 2010 and was returnable on March […], 2010. In its protection application, the Society seeks a finding that the children (A., 9, M., 9 and C., 7) are in need of protection because they have been harmed and are at risk of harm because of a pattern of neglect, including lack of supervision, and that they are likely to suffer emotional harm. In addition to concerns about the safety of the children in the mother’s care, the Society cites concerns in the child protection application about the parents involving the children in the parental conflict. The child protection application seeks a supervision order, terms for the children to reside with the mother and a term of supervised access for the Applicant.

10The Applicant is contesting the Society’s request that his access be supervised. He will also be supporting the Society’s request for the appointment of the Office of the Children’s Lawyer because he feels the Society is biased and an independent assessment of the children’s situation is needed. He advised the Board that he will be asking the Court to find bias on the part of the Society. The main focus of the responding materials that he filed with the Court relates to the issue of whether his access should be supervised. This includes information that attacks the credibility of the affiant and Society worker, Ms. P., over the course of the investigations. The Applicant is alleging that the worker has lied in her Affidavits. He advised the Board that he is seeking to cross-examine the worker on her Affidavit. He referred to her bias and the corruption of the Society.

11The supporting materials of the Society and the Applicant set out with concerns about the care of the children by the mother.

12The Applicant, the Society and the mother agreed to a consent order on March […], 2010, placing the children in the temporary care of the mother, subject to Society supervision and certain additional terms. Access to the Applicant is to be supervised by the Society, subject to his criminal release conditions, with a minimum of one visit per week. The Society has the discretion to eliminate the need for supervision. The interim order contains the term that the Applicant will report any suspected child protection concerns to the Society as the children reside within its jurisdiction (and not to Peterborough).

ANALYSIS

13The Board has determined that it must take the Applicant’s application as it was when filed. At that time, there were no court proceedings involving the Society. Once the Court became involved, however, the Board cannot encroach on any decisions that have been made by the court or on any issues that have been put squarely before the court to decide.

14The Board lacks jurisdiction with respect to the bias issue because the Applicant stated that he will be putting this issue squarely before the Court. He is asking the Court to weigh in on whether or not Society workers were biased or corrupt and whether the Society heard his concerns about bias. The two questions are inextricably linked. He is arranging to cross-examine Ms. P. on her affidavit in aid of his assertion. The second part of the bias issue relates to whether the Applicant was given reasons for the conclusion that he was an abusive person by the intake worker. Because this part of the issue is also based on the assertion of bias and suggests that the Society’s view of the Applicant is possibly founded on bias (and not legitimate reasons), this part of the issue is also an aspect of the overall question of bias that the Applicant will be addressing with the Court.

15With regard to the remaining issues, the Board has jurisdiction to hear the complaints. The subject matter of the issues before the Board are distinct from the subject matter of the issues before the court. The Board is concerned not with the conduct of the parents in terms of whether the Applicant’s access is supervised or whether the children are in need of protection, which form the basis for the material submitted to the Court. Rather, the Board is concerned with whether the Society heard from the Applicant and communicated with him, about his concerns and its decisions, as required by the Act in the time leading up to his Application to the Board.

16Simply because facts are recited in an affidavit that is put the Court, does not mean that the Court will decide an issue that falls within the Board’s mandate. In child protection proceedings, where an issue falls within the Board’s mandate (i.e. is not a substantive child protection or access issue), the Court must be clearly put in a position to address the issue by way of specific request (as in the situation of bias) or have actually determined the issue in order to take the issue outside of the mandate of the Board. In this instance, the Applicant has not asked the Court to rule on whether or not the Society adequately heard him or provided him with reasons for decisions. He has cited facts about the role of the Society, but has done so in aid of his request for a children’s lawyer and his request that access not be supervised. The Act contemplates that substantive child protection issues and service complaints may proceed simultaneously. The facts will necessarily overlap, but the issues to be determined are distinct.

17The purpose of the materials before the Board is to assess whether the Applicant was heard when decisions were being made (i.e. what to investigate and how) and whether the Applicant was provided with reasons for these decisions which relate to his interest in the care of his children. In the family court matter, the information containing alleged disclosures of maltreatment will go to the issue of whether the children are in need of protection and not the conduct of the Society. The Applicant has filed a service complaint with the Board and it is this complaint alone that the Board will address.

18The criminal court will determine whether or not the Applicant committed acts related to the allegations of domestic violence and whether these acts fall within the criminal code offences as charged. The family court, in the child protection proceedings, will also make findings of fact in this regard in order to determine whether the children were exposed to harm and thus in need of protection. The family court will make findings about whether and to what extent the mother harmed or might harm the children in order to determine whether the children are in need of protection. The family court will make findings about the conduct of the Applicant relating to the children in order to determine whether or not his access should be supervised. In making its findings, the family court may make findings of credibility relating to the worker or may make a finding of bias. The family court will also look at the circumstances to determine whether the Children’s Lawyer should be appointed. These are the issues before the courts. The Board will not address any of these issues and has no authority to do so.

19The Board will hear the merits of the issues identified as numbers 2, 3 and 4 relating to abuse concerns, the mother’s mental health and reasons for the Society’s response to concerns. The relevant time frame will be prior to and up to the date of the Applicant’s Application: February 22, 2010. When inquiring into the merits, the Board will address the following questions:

• What concerns were raised about the care of the children by the mother (by the Applicant and others)?

• What decisions were taken in response to the concerns?

• Was the Applicant given the opportunity to be heard regarding what steps the Society did or did not take in response to the concerns?

• Was the Applicant given reasons for the decisions taken by the Society in response to the concerns (for example, was the Applicant informed of the steps being taken, the outcome of investigations and the reasons for conclusions reached about allegations and next steps with reference to legislative and Ministry standards)?

20The hearing on the merits will proceed within this framework.

Sheena Scott

Presiding Member

Mary Wong

Board Member

Wendell White

Board Member