CHILD AND FAMILY SERVICES REVIEW BOARD
H.V. and K.V.
v.
CHILDREN’S AID SOCIETY OF BRANT
WRITTEN REVIEW
Indexed as: H.V. and K.V. v. Children’s Aid Society of Brant
(CFSA s.68)
INTRODUCTION
1H.V. and K.V. (the “Applicants”) filed an application with the Child and Family Services Review Board (the “Board”) on October 10, 2012 pursuant to section 68.1(4) of the Child and Family Services Act (the “Act”) against the Children’s Aid Society of Brant (the “Society”).
2In the application to the Board, the Applicants raise various concerns about actions taken by the Society. The Applicants’ complaint includes concerns relating to an investigation following allegations made by P.B., (the “child), who resided at the Applicants’ home with T.F. (the “child’s mother”). That investigation was based on allegations made by the child as to what was taking place in the Applicants’ home.
3The Board determined on October 18, 2012, that the application was eligible for review under section 68.1 (4) 5, as it related to the investigation reasons only. This means that on its face, the application was appropriate to move on to the next stage of the process which is the submission of a summary reply from the Society.
4The Society filed a summary reply on October [ ], 2012, in which it set out its position, which is as follows: (1) that the Society never provided “a service” to the Applicants; and (2) that the subject matter has been decided by a Court, or is currently before a Court. As a result, the Society submits that the application cannot be heard by the Board as it does not meet the criteria set out in the Act.
5The Board finds that there is sufficient material before it to conduct a written review of the application.
6The issues before the Board are: (1) whether the Society has provided a service to the Applicants; and, (2) is the subject of the complaint based on an issue that has been decided by the court or is before the court.
7For the reasons that follow, the Board finds that while the Applicants did receive a service from the Society, it has no authority to proceed with this application as the subject of the complaint is before the court.
8The relevant sections of the Act are as follows:
- (1)
“service” means,
(a) a child development service,
(b) a child treatment service,
(c) a child welfare service,
(d) a community support service, or
(e) a youth justice service; (“service”)
68.1 (1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may
(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section...
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
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
9The Applicants are the parents of three biological children and two adopted children (who were previously their foster children). In February 2010, the child and the child’s mother moved into the Applicants’ home. In August 2011, the Society’s file with the Applicants was closed. In September or December 2011, the Society commenced an investigation (the “fall 2011 investigation”) in relation to the child who was in the care of the child’s mother, when they were residing in the Applicants’ home.
10The background is described in the Society’s Summary Reply as follows:
“During the investigation, the child P.B. made allegations with respect to his treatment in the …[Applicants] home by members of the …[Applicants’] family.”
11The child was placed in the Society’s temporary care on the first attendance at the Ontario Court of Justice, pursuant to the order of [Justice] dated December [ ], 2011. The Society withdrew its Application and all orders were terminated on February [ ], 2012. The child and the child’s mother returned to the Applicants’ home. On June [ ], 2012, the matter of costs relating to a summary judgement motion that did not proceed was decided by [another Justice]. There is currently an outstanding motion filed by the Applicants and adjourned by the court in August 2012, without a fixed return date. Reasons for the two decisions made by the court, and motion materials filed by the Applicants, were not provided to the Board by either the Applicant or the Society.
12On or about March [ ], 2012, the Applicants commenced a civil proceeding in the Ontario Superior Court of Justice. The named defendants include the Society. As set out in the statement of claim, the Applicants request damages, including punitive damages, as a result of the defendants’ actions as well as their “egregious and wrongful conduct”. The statement of claim sets out the Applicants’ version of the facts as they relate to the fall 2011 investigation. The Applicants provided a copy of the statement of claim to the Board on November 15, 2012.
13In the Board proceeding, the Applicants complain that the Society failed to give them reasons for the decisions that were made that affect their interests, in respect of the fall 2011 investigation.
ANALYSIS
14This decision relates only to the complaints that the Board deemed eligible on October 18, 2012, namely reasons relating to the fall 2011 investigation. Any other complaints were not eligible and will not be addressed by the Board.
15Section 68.1 of the Child and Family Services Act gives the Board authority to review a society’s actions in limited circumstances. Section 68.1(4)5 provides that the Board may consider whether a society provided a complainant with reasons for a decision, but only where the complaint is “in respect of a service sought or received from a society”.
16“Service” is defined in section 3 of the Act, to mean a child development service, a child treatment service, a child welfare service, a community support service, or a youth justice service. The Act then goes on to define each of those terms.
17Section 68.1 (8) of the Act directs the Board not to conduct a review of a complaint if the subject of the complaint is an issue that has been decided by the court or is before the court.
18The Court of Appeal decision in Children’s Aid Society of Waterloo v. D.D. (2011 CFSRB 25) clarified what the Act means by “before the court”. Where there are child protection proceedings, the Board retains its jurisdiction where the issues that are the subject of the complaint are service-related and relate to the society meeting its statutory obligations to provide reasons for decisions that affect the Applicants’ interests. (paragraph 46).
19In this case, the complaint is related to the Society’s decision to investigate allegations made by the child against the Applicants and their children. As such, the Board finds that the Applicants did receive a child welfare service, as they received investigative services. The fact that the Applicants had no open file with respect to these services does not detract from the reality that they were the subject of a child welfare investigation.
20With respect to the provincial court proceeding, no evidence was provided to the Board that the Applicants’ specific complaints have been or are being decided in the protection application being dealt with by the Ontario Court of Justice.
21However, the relevant allegations contained in the statement of claim that is currently before the Ontario Superior Court are based, on the Society’s actions and conduct stemming from the investigation that took place in fall 2011. In D.D., the Court of Appeal directed the Board as follows. “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.” (paragraph 46).
22The statement of claim clearly calls into question the fall 2011 investigation including how the Applicants were treated and communicated with during that investigation. Through the civil action, the Applicants have put the service related issues including whether they were provided with reasons, squarely before the Court to decide. The Society’s actions and conduct in respect of the fall 2011 investigation, and the effects on the Applicants, are issues that are before the Ontario Superior Court. Section 68.1(8) provides that the Board has no jurisdiction over matters that are before the Court.
CONCLUSION
23Notwithstanding that the Applicants did receive a service by the Society, the Board lacks jurisdiction to hear this application and will not do so, as the subject of the complaint is before the court.
CONFIDENTIALITY ORDER
24Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.
ANDREA HIMEL _____________________
Andrea Himel
Presiding Member
Dated at Toronto, Ontario this 30th day of November, 2012.