C.Y. v. Family and Children’s Services Niagara, 2014 CFSRB 19

CHILD AND FAMILY SERVICES REVIEW BOARD

C.Y.

v.

Family and Children’s Services Niagara

REASONS FOR DECISION

Date: April 7, 2014

Citation: 2014 CFSRB 19

Indexed as: C.Y. v. Family and Children’s Services Niagara (CFSA s.68)

INTRODUCTION

1The Applicant filed his application with the Board on January 2, 2014. A pre-hearing was held on March 3, 2014 where the parties agreed that the application consists of the following complaints under s. 68.1 (4)5 of the Child and Family Services Act:

That the Society has not provided the Applicant with reasons for decisions that affected his interests, regarding the following:

1. the decision not to contact him prior to the apprehension of his grand-daughter,
2. the decision not to share with him the protection concerns the Society has regarding his grand-daughter,
3. the decision not to share with him the protection concerns the Society has regarding him, his wife and the father of the child,
4. the decision not to consider him and his home as a place of safety or as a temporary placement,
5. the decision made by the worker who proceeded to the apprehension of his grand-daughter not to answer any of the above questions,
6. the decision not to contact the father of the child prior to the apprehension.

2The Board heard the Society’s motion that the Board did not have jurisdiction to hear this matter on March 21, 2014. The reasons for the decision are as follows.

Analysis

3The Board has determined that it has jurisdiction to hear the merits of the application on all of the issues.

4The Society provided the Board with a document in support of its position that all the issues raised in the application are before the Court and that as such, the Board has no jurisdiction. The relevant section regarding the Board’s jurisdiction is section 68.1 (8):

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

5In Applicants v. Society (CFSA s.68) 2011 CFSRB 25, the Board referred to the Court of Appeal decision in Children’s Aid Society of Waterloo v. D. D. 2011 ONCA 441

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.

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.

6The Society has commenced a child protection application before the Superior Court of Justice regarding the granddaughter of the Applicant. The Child was apprehended at birth at the hospital by the Society. In an Interim Decision of January 3, 2014 the Court gave to the Applicant and his wife, the grandparents, party status for the purpose of the Society’s temporary care and custody motion.

7The Society argued that the Applicant’s issues are referred to in the Applicant’s court affidavit and motions. The Board finds it is not necessary to analyse each issue and the section of the documents referred to by the Society’s counsel for the purposes of determining jurisdiction.

8The Society’s position is that the facts referred to in the application are stated in the court documents. The Applicant’s court documents also allude to the fact that the Society acted the way it did because they are biased towards him due to his advocacy role in seeking more accountability from Children’s Aid Societies. The Society’s position is that the Applicant in his own court documents claims that he knows the reasons why the Society made the decisions he is seeking explanations for in his application before the Board.

9As my colleagues decided in Applicants v. Society referred to above, the Board may have jurisdiction to hear a complaint while there is an ongoing child protection proceeding. The Board has jurisdiction over the issue of whether the society has met its statutory obligation, such as in this case, to provide explanations for decisions made that affect the Applicant’s interest. The Court will decide the child protection issue.

10The issues raised by the Applicant are not before the Court. The facts are referred to in his court documents as well as his opinion about the work of the Society. However, the Court’s main concern will not be to determine whether the Society provided to the Applicant reasons for decisions made. It is the Board’s role. Furthermore, the fact that the Applicant provides in the court documents his own explanation of why the Society would have not met its obligation does not release the Society from its obligation to provide explanations for its decisions when of course, asked for it.

11The Board’s focus when hearing a section 68.1 (4) 5 application has been described in D.B. v. Children’s Aid Society of Oxford County and Family and Children’s Services of Guelph and Wellington County, 2013 CFSRB 41:

23The “right to reasons” under the Act, means a right to a meaningful explanation about decisions that affect the applicant’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8, 2013 CFSRB 8 at para.13, the Board held that:

With respect to this section of the Act, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A complainant must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

DECISION

12The Board has jurisdiction to proceed with the application. The parties will be contacted by the Board to schedule a hearing.

CONFIDENTIALITY ORDER

13Pursuant 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.