Applicant v. Chatham-Kent Children’s Services, 2014 CFSRB 56

CHILD AND FAMILY SERVICES REVIEW BOARD

Applicant

v.

Chatham-Kent Children’s Services

REASONS FOR DECISION

Date: October 15, 2014

Citation: 2014 CFSRB 56

Indexed as: Applicant v. Chatham-Kent Children’s Services (CFSA s.68)

INTRODUCTION

1The Applicant filed his application with the Board on July 16, 2014. The Application was found eligible under sections 68.1(4) 4 and 5 on July 18, 2014. Two Pre-hearing conferences were held on August 14 and September 18, 2014 where the parties agreed that the application consists of the following complaints under s. 68.1 (4)4 and 5 of the Child and Family Services Act, R.S.O. 1990, c. C.11 as amended (the “Act”):

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 following:

1. The Applicant’s concerns with the Society’s manner of collection and use of information about him as a child in care of the Society in court proceedings involving him as an adult. The Applicant asked when was this discussed with him, by whom and, how were his objections taken into consideration.

2. The Applicant’s objection to the Society’s continued retention of the information about him as a child in care in the Society’s records. More specifically, the Applicant asked what are the CAS’s privacy controls regarding the retention and release of a child in care’s personal information, how these controls are governed, who is responsible for enforcing and reviewing these privacy controls and how often they are reviewed.

3. The Applicant’s concerns with the manner of collection and use of his deceased mother’s information in court proceedings involving him as an adult. More specifically, the Applicant asked from whom was the assessment requested, when was it requested why was it requested, why was it decided to be used in the court proceedings against him as an adult and, who authorized or consented to its use.

2The Society submitted that the Board did not have jurisdiction to hear this matter because the issues were decided by the court. The Board heard the Society’s motion on October 14, 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 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:

[44] The 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:

[42] The 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.

[45] I 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.

[46] It 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 commenced a child protection application before the Court regarding the son of the Applicant in November 2009. On April 21, 2011 the Society proceeded to a Summary Judgment Motion where the court determined that the child was in need of protection and placed him in the care of his mother for a period of supervision with access to the Applicant. In the Order of Justice [ ] made that day, and submitted by the Society in its reply to the Board, there is mention of the personality Assessment Inventory Report of the Applicant’s mother. The Court found it was not relevant to the proceedings and ordered it removed from the record where it had been attached as an exhibit to the affidavit of a child protection worker.

7This is the only mention of this document in the order. While the use of the document in court was ruled upon, the questions relating to the issues before the Board in this application were not. The questions posed by the Applicant to the Society – regarding from whom was the assessment requested, when was it requested why was it requested, why was it decided to be used in the court proceedings against him as an adult and, who authorized or consented to its use – are not questions that were placed before the Court, nor were they ruled on by the court.

8Similarly, the questions raised by the Applicant regarding the use of information gathered by the Society while he was a child in care were not raised by the Society or the Applicant in Court and no determination were made in that regards by the court.

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 hear the Applicant when decisions are made that affect his interests and to provide explanations for decisions made that affect the Applicant’s interest. The Court will decide the child protection issues.

10The issues raised by the Applicant were not before the Court; the facts contained in his child in care file were referred to in court documents by the Society. However, the Court’s main concern was not to determine whether the Society heard the Applicant while making decisions or provided to the Applicant reasons for decisions made. It is the Board’s role.

11In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 at paras. 13-14, the Board described the purpose of s.68.1(4) and (5) and addressed s.68.1(4) 4 as follows:

The obligations under s.68.1(4) 4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to, or accept decisions.

To be heard involves active listening, discussions, the Society’s taking steps to address the Applicant’s concerns and communicating this to him so that he feels that his concerns are taken seriously and dealt with thoroughly.

12With respect to s.68.1(4) 5, 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 parent 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.

13In its submissions, counsel for the Society argued that the Applicant is not complaining about a service received, as access to file information and information regarding himself and his mother is not a “social work” function. Secondly, counsel argued that decisions made by the Society to access and use information contained in the Applicant’s child care file is part of the litigation process and subject to litigation privilege.

14While this last argument may be part of an answer to the Applicant as to why the Society did not tell him the reasons why they used the documents in court, it does not constitute an argument to determine that the issues of the Application were before the court. This argument fails.

15The argument that the Applicant is not complaining about a “social work” function also fails. The Act does not state that only “social work” functions are open to review by the Board, it states that any issues that “affect the interests” of the Applicants attract the obligations listed to provide an opportunity to be heard and to be given reasons for decisions.

DECISION

16The Board has jurisdiction to proceed with the application. The parties will be contacted by the Board to schedule a hearing.

CONFIDENTIALITY ORDER

17Pursuant 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.