T.H. v. Children’s Aid Society of Toronto, 2013 CFSRB 63

CHILD AND FAMILY SERVICES REVIEW BOARD

T.H.

v.

Children’s Aid Society of Toronto

REASONS FOR DECISION: MOTION ON JURISDICTION

Date: November 26, 2013

Citation: 2013 CFSRB 63

Indexed as: T.H. v. Children’s Aid Society of Toronto (CFSA s.68)

INTRODUCTION

1T.H. (the Applicant) filed an application with the Board on September 29, 2013. The Board determined that his application was eligible under section 68.1 (4) 4 & 5 of the Child and Family Services Act, R.S.O., 1990, c.C.11, as amended, (the “Act”).

2Following a pre-hearing conference, the Board determined that the application consists of the following complaints:

That the Society has not heard the Applicant’s service concerns or heard him when decisions were made and has not provided him with reasons for decisions that affected his interests, regarding the Society’s involvement with his family which started on August 6, 2013 after the hospital called the Society. This will include an examination of whether there is evidence of racial discrimination that amounts to evidence of the Society not hearing the Applicant or providing him with reasons.

3In its submissions on the motion on jurisdiction, the Society defined the issues as follow:

1. That the Society has banned the applicant from going in his home to see the children.

2. That the Applicant can only see his children twice per week.

3. That the children are afraid of the CAS workers.

4The Board heard the motion on jurisdiction brought by the Society by teleconference on November 15, 2013. The Society argued that the Board does not have jurisdiction to proceed to hear the merits of the application as the parties are before the Court in child protection proceedings and that the issues raised by the Applicant are before the court.

5The way the Society characterized the issues is distinct from how the Board has identified the issues; in the Board’s determination of the issues, the question is whether the Applicant was heard and provided with reasons, in relation to the Society’s involvement with his family.

6The Society has focussed more on the types of decisions that it made regarding its family involvement and a specific concern raised by the Applicant. However, the subject matter of the application is whether the Applicant was heard or given reasons about certain decisions and concerns. The subject matter of the application is not whether he can go to his home or have more access, rather, whether he was given reasons for why he cannot go to his home.

7Section 68.1(8) of the Act reads as follow:

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. 2006, c. 5, s. 26.

8The Society alleged that the Court of Appeal decision in The Children’s Aid Society of Waterloo and D.D., 2011 ONCA 441 applies and prevents the Board from hearing the application. The Board disagrees. In D.D., the court interpreted the Board’s jurisdiction under 68.1 (8) a):

35Here the complaint of D.D. concerns the manner in which the CAS handled the temporary placement of her children while the protection application made its way through the courts. These complaints were separate and different from the substantive issues before the court. The court process would consider the best interests of D.D.’s children on a permanent, ongoing basis. D.D.’s complaints related to the temporary

36The complaints that D.D. brought to the CFSRB did not relate to the protection application per se and, indeed, would in all likelihood be considered irrelevant to it. Her complaints related to the manner in which the CAS delivered its services and its failure to address her complaints.

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.

43As well, D.D. had complaints over the manner in which the CAS was controlling her access visits with her children. The court had ordered that, on an interim basis, D.D. could have supervised visits with her children at the discretion of the CAS. While the court most certainly could have considered D.D.’s complaints in relation to the delivery of services by the CAS, it was not the only forum available to her. (Emphasis added)

9The Court of Appeal decision stands for the idea that in appropriate circumstances, an applicant can still bring an application before the Board while a protection application is proceeding before the court. The question is whether the subject of the complaint is an issue before the court or has been decided by the court.

10At the pre-hearing the complaint has been identified broadly but refers to what the Applicant identified in his application as the way the Society treated him in regards to where he should live and his access to his family.

11In this case, as in D.D., the Applicant is complaining about the way the Society is exercising the discretion given to it by the Court regarding his access to his children. In the Temporary Court Order, [the Justice] ordered that the mother would restrict the access to the children by the Applicant “to the fully supervised access visits approved by the Society”. The decisions around access are at the discretion of the Society as ordered by the Temporary Court Order but the way this discretion is applied by the Society has not been decided by the court and as such the Board has the authority to review whether the Society has heard the applicant and provided him with reasons when exercising its discretion.

12The court also ordered that the Applicant could not attend the family (children’s) home until the Society deems it to be safe and appropriate. Again, the court gave to the Society the discretion to make such determinations and the Board has jurisdiction for the same reasons as above.

13Finally, the Society did not offer arguments regarding the last issue raised by the Applicant, that his children are afraid of the CAS worker. The Board will hear this issue and how the Society dealt with this concern when raised by the Applicant.

14The Board notes that the mother and the children have been in [Country A] since September 10, 2013. The issues raised by the Applicant concern past decisions made by the Society that will have an impact when his family returns.

15For the reasons above, the Board has jurisdiction and will proceed to a hearing.

CONFIDENTIALITY ORDER

16Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings.