CHILD AND FAMILY SERVICES REVIEW BOARD
Applicants
v.
Society
REASONS FOR DECISION ON MERITS
Indexed as: Applicants v. Society (CFSA s.68)
INTRODUCTION
1On April […], 2010 the Child and Family Services Review Board (“Board”) received an application from [the Applicants] being a complaint about the [Society] pursuant to section 68.1 of the Child and Family Services Act (the “Act”).
2The Board deemed the application eligible for review pursuant to subparagraphs 4 and 5 of subsection 68.1(4) of the Act on May 13, 2010. The Society filed a Summary Reply dated May […], 2010. Additional materials were filed on May […], 2010.
3The Board determined on June 2, 2010 that an oral hearing would be held and a Pre-Hearing Teleconference was held on June 14, 2010.
4At the Pre-Hearing, the Applicants acknowledged that their application to the Board consisted of the following complaints:
The Applicants’ concern that they have not been heard with respect to the issues regarding the family service worker and his abuse of power in the Applicants’ home.
The Applicants’ concern that they have not been heard regarding the statement made by the Society supervisor that the Applicants are deflecting from the real issues and the Applicants have not been provided with an explanation by the Society in respect of this statement.
There is a conflict of interest between the family service worker and the Applicants and the Applicants’ concerns in this regard have not been heard.
The Applicants’ concern that they had been lied to about their daughter being placed in the [Hospital A] for over one month and not provided with reasons for the decision to place her there.
The Applicants were not given written reasons as to why their daughter was apprehended by the Society.
The Applicants were not provided with written reasons by the Society as to why their daughter was placed in a small community where she lost everything including her part-time job, music lessons and was removed from her school.
The Applicants were not provided with written reasons for decisions made by the Society following the completion of the investigation on October […], 2009 by the [other] CAS.
The Applicants requested that a social assessment and a drug test be completed on their daughter and they were not provided with written reasons by the Society for failing to do so.
The Applicants’ concern that the Society did not offer them any assistance when they were planning for the return of their daughter after she had been in care for eight months and the Applicants have not been provided with an explanation for this decision by the Society.
The Applicants were not involved in the regular plans of care and the Society has not heard their concerns in this regard or provided the Applicants with an explanation.
The Applicants’ concerns that no therapy occurred in the therapeutic foster home have not been heard by the Society and the Applicants have not been provided with reasons for this decision by the Society.
The Applicant, [ ], was not provided with written reasons as to why she was forced out of her Society position and not reinstated and these Applicant concerns have not been heard by the Society.
5A Pre-Hearing Report dated June 22, 2010 was sent to the parties, which provided, amongst other things that a three-day hearing would be scheduled for July 12, 13 and 14, 2010, at which time the Board will first hear the Society’s motion that the Board does not have jurisdiction to hear the application, and if the Board determines it has jurisdiction to proceed to the hearing of the merits of the complaints, then the hearing to proceed immediately afterwards.
6The Society then made an application to the Superior Court of Justice, Divisional Court, seeking leave to obtain a temporary Prohibition Order to prohibit the Board from hearing the Applicants’ complaints, until the Divisional Court has determined the Application for Judicial Review ([Society] and Child and Family Services Review Board and [Applicants] (no citation found), dated July 5, 2010 (“Applicants.”)). The Divisional Court heard this application on July 9, 2010, and Justice P. H. ordered, on the consent of the parties, that the Board could proceed to hear the issue of jurisdiction raised by the Society on July 12, 2010 but could not proceed to hear the merits of the application “until the appeal period has terminated with respect to the jurisdiction question”.
7The Board heard the Society’s motion on jurisdiction on July 12, 2010. However, no decision was made by the Board pending an appeal to the Ontario Court of Appeal of another matter, The Children’s Aid Society of Waterloo v. D.D., 2010 ONSC 3328 (“D.D.(Div.)”) made July […], 2010. That Divisional Court decision narrowly interpreted the jurisdiction of the Board in an application under s.68.1(8)(a) when a child protection proceeding has been made to the Court under the Act. The decision of the Court of Appeal for Ontario, Children's Aid Society of Waterloo v. D.D., 2011 ONCA 441, (“D.D.(C.A)”) was released June 9, 2011. The Court of Appeal granted the appeal of the Board and quashed the decision of the Divisional Court, confirming the decision of the Board. The Board is now in a position to determine jurisdiction in this case. For the reasons that follow the Board finds that it has jurisdiction to hear all but complaint number 12, as identified and clarified in the Pre-Hearing Report, dated June 22, 2010.
BACKGROUND
8The Applicants are the parents of the child E.B, born September […], 1993, whom they adopted as a toddler. The family had two previous involvements with [another society], from March […], 2008 to April […], 2008 and September […], 2008 to December […], 2008.
9In June 2009 the Society contacted the [other society] to assist with its investigation on a confidential file. The file was confidential because the Society had received referral information being allegations that E.B. may require child protection intervention and that the mother of the child, [ ], was a Society employee.
10During the course of its investigation, the child moved from the home to reside at her friend’s parents’ home and was later admitted to hospital due to suicidal ideation. The parents were not aware that their child was in hospital. The Society brought a protection application to the court and was granted an interim order placing the child in the Society’s care on September […], 2009, and a final order placing the child in the care of the Society for a six-month period on November […], 2009.
11At the date of the application, May […], 2010, the child continued to be in the care of the Society. The Applicants have brought this complaint to the Board about the services which the Society provided to their family during this period.
PRELIMINARY ISSUES
12The Society raised two preliminary objections to the Board and on which the Board made rulings at the jurisdiction hearing on July 12, 2010. The objections and reasons for the rulings are set out below. The Board also made a ruling on the number of people a party can have in a hearing room. The reasons for this ruling will be set out in the decision on the merits of the application.
1. Complaints identified in PHR are not those as stated in the application.
13The Society objected to the 12 complaints listed in the Pre-Hearing Report, arguing that the issues identified were not contained in the application and that the hearing should only proceed on the complaints as set out in the application.
14The Applicants stated that these were the substance of their complaints which were contained in their application.
15The purposes of a Pre-Hearing are set out in section 16 of Ontario Regulation 494/06 and in Rule 21 of the Board’s Rules of Procedure. Section 16 (b) of the Regulations reads:
- At the pre-hearing conference, the member of the Board who is presiding shall attempt,
b. to simplify the issues;
16Further, Rule 21(a) of the Board’s Rules of Procedure permits the Board to identify and simplify an applicant’s complaints as stated in the application, prior to scheduling an oral hearing. At this stage the essential elements of the application are clarified and detailed. All parties were present at the Pre-Hearing Conference, where the Board explored the exact nature of the Applicants’ complaints to identify the areas where a complaint of not being heard or given reasons by a society is made. Twelve issues were identified as the Applicants’ complaints during the Pre-Hearing Conference and those issues are set out in the Pre-Hearing Report. After those issues have been delineated, the panel hearing the application then makes a determination on those issues only.
17The Parties have known about the framing of the issues since the Pre-Hearing Report of June 22, 2010; i.e. three weeks prior to the hearing. The Society did not raise any objections to the framing of the issues during that time. Further, the Society failed to establish that it was prejudiced through this process.
18The Board held that the twelve(12) complaints listed in the Pre-Hearing Report would form the basis of the jurisdiction hearing.
2. Should Ruth Ann Schedlich sit as a member of the panel hearing the application?
19The Society brought a motion to have Ruth Anne Schedlich, Vice Chair of the Board, and a member of the panel assigned to this proceeding, recused due to her prior involvement in the file. The Society argued that Ms. Schedlich made a decision on May 13, 2010 when she determined that the application was eligible for review including the subsections of the Act under which the application was eligible. On June 2, 2010 Ms. Schedlich made a decision to hold an oral hearing and later conducted the Pre-Hearing on June 14, 2010.
20The Society took the position that when Ms. Schedlich determined both the aspects of the complaint that could be reviewed and that the matter was eligible for review, she did not take into account section 68.1(8) of the Act, which limits the Board’s ability to review applications. The Society also argued that in making a determination that the matter could proceed to an oral hearing, Ms. Schedlich made a decision as to process. In the Society’s view, this step could have been a final decision if Ms. Schedlich had decided to not have this file proceed to an oral hearing. The Society further argued that because Ms. Schedlich had determined the issues for the hearing at the Pre-Hearing Conference, she had already made a decision on jurisdiction. The Society as a result, was requesting that Ms. Schedlich not remain on the panel to hear the application and was inquiring as to whether Ms. Schedlich had already determined that the Board has jurisdiction.
21The Applicants in response stated that the Board provided the parties with useful information which clarified the process at a Pre-Hearing Conference and did not oppose Ms. Schedlich continuing as a panel member.
22The Society indicated that it was not aware of Ontario Regulation 494/06, which sets out the Society and the Board responsibilities under sections 68 and 68.1 of the Act. The Board’s Rules of Procedure, which were developed using the Regulation as a guide, provide more details of the Board’s process following receipt of an application under these sections of the Act. The Society was advised in a letter dated May […], 2010 that the Rules of Procedure are available on the Board’s website, or that a hardcopy could be requested. There is no indication that the Society requested this information from the Board.
23The Board’s process, which is outlined below, was explained to the parties and the Board determined at the jurisdiction hearing that Ms. Schedlich would not step down as a panel member as she did not pre-judge the matter.
24When an application is filed with the Board, the subject society is notified by letter. The Board’s process, including timelines and the following steps, are described in that letter. The Society received this notification by way of letter dated May […], 2010.
25The Board treats “eligibility” as a different matter from “jurisdiction”. The Board reviews an application upon receipt and determines if the matter is eligible to proceed to the next stage of the process. At this point there is a basic assessment of whether the complaints, as alleged, may fall within the parameters of one of the matters which the Board could review under section 68.1(4) of the Act. If the matter is deemed eligible for review, an eligibility letter, like Ms. Schedlich’s letter of May 13, 2010, is sent to the applicant and the society.
26The society then submits a Summary Reply, which may include a position with respect to the Board’s jurisdiction. In this case, the Society submitted a Summary Reply dated May […], 2010, which questioned the Board’s jurisdiction to hear the application. At this stage no decision is made about jurisdiction.
27The Board reviews both the application and Summary Reply to determine whether to proceed to an oral hearing or in the alternative, if the Board will conduct a written review of the application. A written review is conducted if there is sufficient information contained in these documents for the Board to make a final determination. If there is not, then the matter will proceed to an oral hearing. The Applicants and the Society received notification of this by way of letter dated June […], 2010.
28Prior to an oral hearing, Regulation 494/06 requires the Board to hold a Pre-Hearing Conference. The Pre-Hearing Conference is an opportunity to resolve some or all of the outstanding issues, to simplify and define the issues, to identify witnesses and to schedule dates for a hearing. The Board gives the parties an opportunity to resolve the outstanding issues by having specially trained Board members act as mediators through a voluntary Settlement Facilitation process which is offered as an option during the Pre-Hearing Conference. In this case, the Board advised the parties that an in person Pre-Hearing/Settlement Facilitation would be scheduled. The Society advised on June […], 2010 that it did not agree to the process and would not participate in the Pre-Hearing/Settlement Facilitation, so a Pre-Hearing Teleconference was scheduled in order to organize the coming hearing.
29At the Pre-Hearing Teleconference, conducted by Ms. Schedlich, no settlement discussions took place. Preliminary issues, such as the Society’s intent to challenge the jurisdiction of the Board to hear the merits of the application, were identified. The Applicants’ complaints were clarified and through this process the Society was made aware of the case it has to meet avoiding any surprise at the hearing.
30The Board member at the Pre-Hearing Conference does not make a decision with respect to jurisdiction unless all parties are prepared to proceed. Ms. Schedlich at the Pre-Hearing did not make a jurisdiction decision.
31When settlement discussions occur in the presence of a Board member, that Board member will not be assigned as a member of the panel assigned to hear the application, due to confidentiality. In this case, no settlement discussions took place, so Ms. Schedlich was not prohibited from hearing the application and was assigned to the panel.
32The Society’s challenge to the Board’s jurisdiction to hear the merits of the application, was properly noted by Ms. Schedlich, and the panel upon review of the Pre-Hearing Report, was aware that the Board would first have to make a determination with respect to jurisdiction prior to hearing the merits.
33At a jurisdiction hearing, the Board determines if it has jurisdiction to proceed to a hearing on the merits for each of the issues identified in the Pre-Hearing Report. If the panel determines that it has no jurisdiction, the Board will have no authority to review the issue under section 68.1 of the Act, and a hearing on that issue will not be conducted. On the other hand, if there is jurisdiction to hear the issue, then an oral hearing on the issue will follow.
34The Pre-Hearing Report of June 22, 2010 contains the following:
The oral hearing will take place on July 12, 13 and 14, 2010.
The Society will proceed first with its motion on jurisdiction and the Applicants will respond.
The Applicants will proceed first on the hearing on merits, if the Board rules that it has jurisdiction to hear the merits, and the Society will respond. This hearing will follow immediately after the motion on jurisdiction has been determined.
35The fact that the jurisdiction motion and hearing were scheduled consecutively is not indicative that the Board pre-determined that it has jurisdiction, but rather reflects a balancing of the Board’s duty to conduct hearings in a fair and expeditious manner and to be fiscally responsible as a public body. It is difficult to find consecutive dates to accommodate the parties’ schedules and the Board must also consider travel, accommodation and food expense. Therefore the Board attempts to schedule hearings for consecutive dates, even when its jurisdiction is challenged. The Board will first hear the jurisdiction arguments and then adjourn to deliberate. If the Board finds that it does not have jurisdiction or reserves the jurisdiction decision, then the other dates are vacated. The hearing of the merits can and will only proceed if the Board finds that it has jurisdiction. This avoids unnecessary costs and delays.
36Ms. Schedlich was following this process when at the Pre-Hearing three consecutive dates were scheduled. Ms. Schedlich at the Pre-Hearing did not make a determination that the Board had jurisdiction to proceed. Therefore there is no reason why Ms. Schedlich could not sit as a member on the panel hearing the application.
DECISION ON JURISDICTION
37The issue before the Board is whether the Board has the authority to review the merits of the Applicants’ complaints as listed above.
38Under subsections 68.1(4) 4 and 68.1(4) 5 of the Act the Board can review the following matters:
68.1(4) The following matters may be reviewed by the Board under this section:
Allegations that the society has failed to comply with clause 2(2)(a).
Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
Section 2(2)(a) of the Act sets out the following requirements which the Society has to comply with:
2(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.
The Board’s ability to review issues raised in an application under section 68.1 of the Act is limited by among other things, section 68.1(8) which reads:
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.
39In this case, the Society took the position that all of the issues raised by the Applicants had been decided by the Court or were before the Court and that accordingly the Board did not have jurisdiction with respect to these complaints. The Society made these submissions without having the benefit of the determination made by the Court of Appeal for Ontario in the D.D.(C.A.) decision.
40The legislature did not provide clear direction as to the interpretation and application of subparagraph (a) of Section 68.1(8) of the Act, that is when an issue is before the Court or has been decided by the Court. The Board interpreted this section to mean that substantive child protection matters, such as custody and access, and determinations about what actions are in the best interests of the child are clearly matters to be dealt with by the Court and not by the Board. On the other hand, matters related to the services which parents or their children have received from the Society were within the Board’s purview. The Board in D.D. v. Children’s Services of the Waterloo Region (CFSA s.68), 2009 CFSRB 46 (“D.D.”) decided that it had jurisdiction to determine the issues in that proceeding because those issues were not before the Court in such a way as to deprive the Board of jurisdiction.
41This decision was appealed by the Waterloo CAS to the Divisional Court, and the Divisional Court in D.D.(Div.) decided on July 20, 2010 as follows:
In the circumstances in which a child protection proceeding is before a court, interested parties may bring all complaints before the court which will review the substantive issue of the best interests of the child in accordance with the requirements of natural justice. It is only where child protection proceedings are not before a court that a forum is required to ensure that the interests of the child are addressed through the benefit of the involvement of all interested parties.
42The Divisional Court decision, which was overturned by the Court of Appeal, restricted the jurisdiction of the Board to hear complaints under section 68 and 68.1 of the Act to situations where there is not, or was not, a child protection proceeding before the Court at the time the service-related complaint arose.
43The decision of the Divisional Court referred to above was appealed to the Court of Appeal for Ontario. The Court of Appeal was clear on the limits which section 68.1(8) of the Act places on the Board’s jurisdiction to hear an application. In paragraph [27] the Court stated:
27In my view, before the CFSRB can embark on a review, it must be satisfied that the subject matter of the complaint is neither (i) an issue that has been decided by the court nor (ii) an issue that is currently before the court.
44The Court of Appeal in paragraphs 42 and 45 further clarified the Board’s jurisdiction and the limits under section 68.1(8). These paragraphs read:
42The Court and the CFSRB are concerned with different issues. The court, of course, is engaged in a determination of the best interests of D.D.’s children in terms of where they should live in the long term. The CFSRB, in this instance, is concerned with whether the CAS is carrying out its statutory mandate in terms of its dealings with D.D. in the short term, while matters are pending before the court.
45I do not accept the CAS position that if matters could have been raised before the court, there is where they must go. The language used in the statute is clear: only those matters “decided by the court or before the court” – past and present- are excluded from the CFSRB’s jurisdiction. If the legislature intended that all matters that could be raised before the court were also excluded, it would have said so in clear language and it did not.
45The Court of Appeal decided that the Board’s decision to accept jurisdiction in the first instance was correct and in accordance with its statutory mandate as set out in paragraph 46 of the Court of Appeal’s decision. The Board in the decision made August 24, 2009 in D.D. distinguished its role from that of the Court as reproduced in paragraph 13 of the Appeal Judgment as follows:
Issues of substantive child protection, custody and the granting of access are not decided by the Board and fall within the Court’s mandate. Conversely, the Court will rarely examine whether a Society took into account the views and wishes of a parent or provided them with reasons for decisions that relate to the services provided by Societies that might be linked to the steps taken by a Society with respect to an issue that is ultimately before the Court.
There may be instances in which a Court has decided an issue that might involve Society process. If the Court has made a finding in this regard, it has decided the matter and that decision is binding. There would be no point in the Board examining an issue that has been finally determined even if it was a matter more typically dealt with by the Board.
46It is now clear that the Board may have jurisdiction even when there is an ongoing child protection proceeding. The Board has jurisdiction to hear applications from parties who have or have had child protection proceedings before the Court, if the issues before the Board are service-related and relate to the society meeting its statutory obligations to listen to the concerns of parents and to provide reasons for decisions that affect the applicant’s interests. However, if the complaint is an issue that is before the Court to make a determination, or if the Court has made a finding on the service-related issue, that is, it has decided the issue, then the Board has no jurisdiction to hear the merits of the complaints.
Complaints 1 - 11
47In the application before this panel, the Society took the position that there is an ongoing child protection proceeding and that complaints 1 -11 raised by the Applicants are before the Courts under the broad “best interests” umbrella, and cannot be reviewed by the Board.
48The Society pointed to the temporary Order of Justice H., made September […], 2009, making the child a temporary ward and the final order of Justice K. made November […], 2009. The Society argued that the Court has made determinations that the child was in need of protection and in coming to those decisions, the Court under the Act was obliged to look at the following:
Was the nature of the Society’s involvement prior to bringing the child protection application appropriate?
Were the services provided by the Society adequate?
Were the services well delivered?
49The Society stated that these are service-related considerations which are within the Court’s purview and it is assumed that the Court “has done its work”, so the Board has no jurisdiction to hear the service-related complaints herein. The Society indicated that the transcripts for these proceedings were ordered, but not yet obtained. The Society was advised that the Board needed a copy of those transcripts to determine if the Court made a determination of the service-related issues before this Board.
50The Society further argued that the Applicants raised their service-related concerns in affidavits before the Court, and accordingly, they were before the Court.
51The [Applicants] replied that whenever they tried to raise any service-related complaint before the Court, they were told to focus on the future, not on the past.
52The Board finds that it has jurisdiction to hear issues number 1 -11. It is true that the factual content of some aspects of affidavits in child protection proceedings overlap with the complaints the Applicants bring before the Board in this application. This alone does not necessarily mean that the Court has made or will make a determination on that service issue. The Court of Appeal has upheld the Board’s position that to be deprived of jurisdiction, the service-related issue must be an issue before the Court, meaning that the Court is expected to make a finding or determination. It is not enough that the service-related concerns are mentioned in court proceedings or documents.
53The issue before the Court in the child protection application which resulted in the Court making the orders of September […], 2009 and November […], 2009 was whether the child was in need of protection and if so, what least restrictive order will be suitable to protect the child. The underlying issue of the Applicants’ complaints before the Board in this application is whether the Society heard the Applicants’ concerns and provided them with reasons for decisions that affected their interests. There is no evidence before the Board that this underlying issue was before the Court. The Society failed to prove that what is or was before the Court is the manner in which the Society delivered its services and its failure to address the Applicant’s concerns. Therefore the Board finds that it has jurisdiction to hear complaints 1 to 11.
12. The Applicant was not provided with written reasons as to why she was forced out of her Society position and not reinstated and the Applicant’s concerns have not been heard by the Society.
54The Society argued that this issue does not fit into the purpose of section 3 of the Act, since it deals with employment issues, which in the context of unionized employees, will be dealt with under the Labour Relations Act, S.O. 1995. Therefore, the Board is prohibited from reviewing this complaint by section 68.1(8)(b) of the Act.
55The Applicants argued that this issue was not addressed by the Court, but acknowledged that the union, in a labour relations context, is currently addressing this complaint.
56The Board finds that this complaint is subject to another decision-making process under the Labour Relations Act. Therefore the Board, pursuant to section 68.1(8) of the Act, does not have the authority to review the merits of this complaint.
CONCLUSION
57The Board has jurisdiction under section 68.1 of the Act to hear complaints one (1) to eleven(11). As required by the Divisional Court decision of Justice P.H. in [Applicants] made July […], 2010, an oral hearing of the merits of these complaints will not be scheduled until “the appeal period has terminated with respect to the jurisdiction question”.
Denyse Diaz Presiding Member
Ruth Ann Schedlich Vice Chair
Frances Sanderson Board Member
Dated at Toronto, Ontario on this 25th day of July, 2011