T.B. v. Halton Children’s Aid Society, 2016 CFSRB 15

CHILD AND FAMILY SERVICES REVIEW BOARD

T.B.

v.

Halton Children’s Aid Society

REASONS FOR DECISION ON JURISDICTION

Date: May 16, 2016

Citation: 2016 CFSRB 15

Indexed as: T.B. v. Halton Children’s Aid Society

(CFSA s.68)

1The Child and Family Services Review Board (the “Board”) received an application from T.B. (the “Applicant”) on June 26, 2015 regarding a complaint against the Halton Children’s Aid Society (the “Society”) pursuant to section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended (the “Act”).

2On July 3, 2015, the Board determined that the application was eligible to proceed to the next stage of the Board’s process: the receipt of the Society’s response. The application was found eligible under section 68.1 (4) 4 which relates to the Applicant’s right to be heard by the Society and section 68.1 (4) 5 which relates to the Applicant’s right to be given reasons for decisions that affect her interests.

3The Applicant raised the additional issue that the Society failed to follow the statutory timelines for the ICRP process. The application was found eligible under section 68.1 (4) 2 and 3. The Applicant had requested an ICRP on February 18, 2014. There was no eligibility made and the ICRP was not held until October 3, 2014. The Society conceded that it did not follow the timelines in the formal complaint process for determining eligibility and setting up an ICRP as required by sections 3 and 7 of Regulation 494/06. The Society had apologized to the Applicant for this delay in October 2014 and, further, the Society consented to a finding by the Board that they did not meet these timelines. That issue requires no further action on the part of the Society.

4The Application’s original issues were in relation to concerns not addressed through the ICRP with regards to alleged sexual conduct involving her son and daughter not being fully investigated by the Society. These include:

A. Not following up to or providing her with information about the joint investigation interview of her daughter with the Applicant.

B. March 2014 incident reported by her daughter (not speaking to the nurse as asked by the Applicant).

C. December 2013 incident: investigation details and disclosure of second occurrence not told to Applicant.

D. Impact of [Hospital] report of March 2014 and lack of follow up.

E. Allegations that the Applicant coached the children especially in light of the [Hospital] Report.

5In its response dated July 21, 2015, the Society submitted that it had complied with the requirements under the Act.

6At the first pre-hearing held on August 7, 2015 when the Applicant confirmed that she has filed a civil action against the Society. The Society submitted that the Board lacked jurisdiction because the issues raised in the Application are the same as those before the Court.

7The Applicant was directed to file a copy of her statement of claim with the Board for discussion at the next pre-hearing conference that was scheduled for August 20, 2015 to discuss jurisdictional issues. The Society was directed to disclose a number of documents to the Applicant for the purpose of preparing her Application before the Board only, and not to be used in any court matters.

8At the second pre-hearing conference on August 20, 2015, the Applicant had not yet filed her statement of claim as it was in the process of being amended. However, the Applicant had brought a motion in court for the disclosure of her CAS file that was to be heard on August 26, 2015. As a result, the Board’s disclosure order of August 7, 2015 was put on hold pending the decision on Jurisdiction.

9As the Applicant had not yet complied with the Board’s direction to submit a copy of her statement of claim in order for the Board to be able to determine if the issues were before the Court, the Application was put on hold until this was completed. The parties would then have a further 5 days to file any additional submissions on jurisdiction.

10The Applicant did not file her statement of claim with the Board on February 11, 2016.

11A further pre-hearing was held on March 9, 2016 following the receipt of the Applicant’s statement of claim. The Applicant requested to have additional issues that had occurred since the filing of the Application, joined to her Application. The Board directed the Applicant to submit details of her additional issues by March 15, 2016 and provided the Society with an opportunity to respond to these as well as submit any additional jurisdictional issues by March 21, 2016.

12On March 15, 2016, the Applicant submitted that the Society has not heard the her service concerns or heard her when decisions were made and has not provided her with reasons for decisions that affected her interests, regarding the following additional 15 issues:

1. The decision to not investigate the report of the “kissing game” made by the Applicant in February 2013 and the fact that the Society claimed that it did not exist and then, that it could not be located in the file for 17 months until the Applicant located it, misfiled under the father’s name as a “Report Received Not Investigated”.(paragraph 1 of Applicant’s March 15, 2016 submissions)

2. The ongoing concerns raised with the Society about the false and malicious reports made about the Applicant and her oldest son by the father of the Applicant’s two youngest children and the reasons for the Society’s decisions not to take actions about these continued concerns. (paragraph 2 of Applicant’s March 15, 2016 submissions)

3. The ongoing concerns raised by the Applicant since 2006, about her children suffering emotional harm at the hands of their father, and the reasons why the Society has decided not to take any action with the father as a result of this harm. (paragraph 3 of Applicant’s March 15, 2016 submissions)

4. The failure/delays to provide a referral to the ROCK program as agreed to at the Signs of Safety Meeting held in October 2015 and the failure to hold a second Signs of Safety Meeting within 3 months of the first, as agreed in October 2015. (paragraph 4 of Applicant’s March 15, 2016 submissions)

5. The failure to inform the Applicant and the CAAP team performing the assessment, about a sexual abuse disclosure made by the Applicant’s son [ ] in May 2014 and reported to CAS by a counsellor from Halton Family Services and failure to investigate this report to date. (paragraph 5 of Applicant’s March 15, 2016 submissions)

6. Failure to inform the Applicant about the details of a disclosure of invitation to sexual touching made by her daughter [ ] about her half-sister [ ] during a joint CAS/police interview in 2013 and the reasons why the Society decided to not investigate this disclosure. (paragraph 6 of Applicant’s March 15, 2016 submissions)

7. The concern that the Family Services Worker [ ] threatened the Applicant to remove her children if she raised more concerns, that [Family Services Worker] did not perform adequate investigation of the concerns and the reasons why these concerns were not addressed with the Applicant. (paragraph 7 of Applicant’s March 15, 2016 submissions)

8. The concern about the verification decision of “risk of emotional harm due to parental conflict, specifically during access exchange” made in September 2013 and the fact that the Applicant was not made aware of this decision until the file closing letter was received in March 2016. (paragraph 8 of Applicant’s March 15, 2016 submissions)

9. The reasons for the decision by the supervisor to not open an investigation in October 2013. (paragraph 9 of Applicant’s March 15, 2016 submissions)

10. The unaddressed concerns with the length of the December 2013 investigation and the reasons for the failure to act upon the finding that the father was not appropriately supervising the children during access visits. (paragraph 10 of Applicant’s March 15, 2016 submissions)

11. The reasons for the Society’s failure to perform random drug testing of both parents contrary to the voluntary agreement of November 2015. (paragraph 11 of Applicant’s March 15, 2016 submissions)

12. The reasons for the Society’s failure to conduct a second SOS meeting within three months of the first contrary to the voluntary agreement of November 2015.(paragraph 12 of Applicant’s March 15, 2016 submissions)

13. The reasons for the Society’s decision to refuse to provide the Applicant with a complete copy of her file to be able to review and submit a Letter of Dispute. (paragraph 13 of Applicant’s March 15, 2016 submissions)

14. Concern that he Society is not following the prescribed standards pursuant to paragraph 15(4) the CFSA. (paragraph 14 of Applicant’s March 15, 2016 submissions)

15. Concern that the Society is not performing its statutory duties pursuant to paragraph 15(3) of the CFSA. (paragraph 15 of Applicant’s March 15, 2016 submissions)

MOTION

13A motion to determine eligibility of the new issues and the jurisdiction of all the eligible issues was held April 11, 2016.

Respondent’s position

14The Society submits that the issues in dispute relate to the conduct of the investigations by the Society at different points in the involvement with the family. These issues are at the very heart of the claim of negligence by the Society about steps taken or not on those issues. Similarly, the issues relating to the failure to communicate with the Applicant also fall under the category of conduct by the Society, which will be determined by the Court to be negligent or not. The Society submitted that the issues in the Application as originally filed and the additional issues submitted in March 2016, other than issues 4, 11 and 12, are before the court or have been decided by the court, either through the Family Court proceeding or the pending civil suit. As such the Board has no jurisdiction to consider them based on s.68.1(8) of the Act.

15The Society concedes that issues 4, 11 and 12 are new issues that have occurred since the Applicant filed her original application with the Board and issue 5 is a “new issue” in the sense that the Applicant just learnt of it in July 2015 although the events occurred in May 2014. However, the Society submits that issues 2 and 5 are outside of the Board’s jurisdiction and that issues 4, 11 and 12 should not be heard because it was the Applicant who requested that her file be closed. The remaining issues are not new issues that have occurred since the Applicant filed her original application with the Board and should therefore be dismissed.

Applicant’s position

16The Applicant submits that, while the same facts are before the Board and the Court, the questions to be determined by the two bodies are not the same. The Applicant submits that the Court will determine whether the Society’s actions were negligent and performed in bad faith and, if so, whether the actions resulted in damage to her and her children and what remedy should be awarded for these damages. The Board will determine whether she was heard when decisions were made or when she raised concerns and whether she was provided with explanations for decisions made. In the Applicant’s view, these are different issues that do not overlap.

17The Applicant submitted that, while some of the new issues are resulting from events that occurred before her original application was filed, many of the concerns raised are ongoing and need to be added to the application as they have not been addressed by the Society. The Applicant also submitted that she was unaware of some of the information contained in the file until she was provided with disclosure of her file. The Applicant claims that part of her file was not disclosed by the Society during the initial review of her file in 2014 and that she has discovered new information starting in March 2015 and continuing to now.

ANALYSIS

Section 68.1(8)

18The Board has no jurisdiction to hear complaints if they involve matters that are before the Court or have been decided by the Court. Section 68. 1(8) of the Act provides that:

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.

19In Children's Aid Society of Waterloo v. D.D., 2011 ONCA 441, the Court of Appeal for Ontario determined that the mere existence of a child protection proceeding or the fact that there is overlap between the information before the Board and the Court in an affidavit is not enough to take a matter out of the Board’s jurisdiction. At paragraph 13 of its decision the Court of Appeal adopted the Board’s description of the respective roles played by the Board and the courts in child protection matters.

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. [emphasis added]

20While the matter before the Court in this case is not a child protection matter but rather a civil suit for negligence, and therefore D.D. is not directly on point, I am satisfied the Court of Appeal’s reasoning is of assistance in deciding this issue. The Act anticipates that a service concern may proceed before the Board at the same time as a child protection application before the Court because they involve different issues and interests. However, in this situation, the Applicant has raised service concerns directly with the Court in the context of her claim of negligence.

21In a negligence claim, three elements must be established. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to act in a manner consistent with this duty. Third, the plaintiff must prove that she suffered injury or loss as a direct result of the defendant's breach.

22In the present case, the Court will also need to decide whether the individual defendants acted in good faith within the meaning of s.15(6) of the Act :

No action shall be instituted against an officer or employee of a society for an act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty.

23The Court will need to decide the nature of the duty of care owed to the Applicant and her children, whether the Applicant and her children were harmed, whether this harm was caused by the alleged negligent conduct of the Society and its employees and whether these employees were acting in bad faith.

24The Board must decide whether the Society heard the Applicant within the meaning of s. 68.1(4)4. The Board is not tasked with deciding the correctness of the Society’s actions or whether they resulted in harm to the Applicant and her children. However, the evaluation of whether the Society’s employees listened to the Applicant when she raised concerns and whether the Society’s employees provided her with the opportunity to have some degree of influence in the process involves the examination and finding of facts on the same issues that are to be determined by the Court albeit these findings will lead to different conclusions.

25Both the Board and the Court would need to reach conclusions as to what was said to whom at what time, what actions were taken or not as a result of these conversations, etc. Therefore, the Board cannot address these issues under section 68.1(4)4 of the Act.

26A different analysis applies to the Applicant’s allegations that the Society failed to provide her with reasons for its decisions as required by s.68.1(4)5. In this review, the Board will make factual determinations about whether the Society provided explanations to the Applicant that were timely and sufficiently detailed to allow her to understand why and how the decisions were made. This does not form part of the elements that the Court will need to determine in the negligence analysis and therefore can be addressed by the Board.

27Accordingly, the Board has jurisdiction to consider the allegations made pursuant to section 68.1(4)5 with regards to 1) the determination of whether the Society made certain decisions and if so, 2) the determination of whether the Society provided the Applicant with reasons for the decisions made with regards to the following issues:

1. Issue A: the decision to not provide the Applicant with information about the joint investigation interview of her daughter.

2. Issue B: the decision to not interview the nurse following the March 2014 incident.

3. Issue C: the decision to not give the Applicant the details of the second disclosure of December 2013.

4. Issue D: there are no decisions involved in this issue.

5. Issue E: there are no decisions involved in this issue.

6. Issue 1: the decision to not investigate the February 2013 report of the “kissing game”

7. Issue 2: the decision to not take actions about the “false and malicious reports” made by the father.

8. Issue 5: the decision to not disclose to the Applicant and to the CAAP team that Halton Family Services reported a disclosure from the Applicant’s son J. in May 2014.

9. Issue 6: the decision to not inform the Applicant about a disclosure made by her daughter M. during the joint Police-CAS interview in 2013.

10. Issue 8: the decision of verification of “risk of emotional harm because of parental conflict” in September 2013.

11. Issue 9: the decision to not open an investigation in October 2013.

The “New” Allegations

28Having decided the s.68.1(8) issue I turn now to whether the Board should consider the Applicant’s March 2016 allegations.

29The Board finds that certain of the “new issues” relate to incidents and decisions made prior to the filing of the Application on June 26, 2015 that the Applicant was aware of and should have been included in the original application. Even if the Applicant was unaware of certain factual details until “full disclosure” was provided by the Society, she was aware of having an area of concern left unaddressed.

30Furthermore, in order for the process to be fair to both parties, there needs to be a point where the issues to be reviewed by the Board are finalized, in order to allow respondents with a fair opportunity to provide a full response. This being said, there is also room for issues to be clarified, up to the hearing on merits, this is a normal part of case management and a pragmatic use of Board resources rather than have applicants file a new separate application to address these issues.

31In this case, a number of the “new issues” are logically related to the original issues and some of the new issues also resulted from the Applicant discovering new information while continuing to review her file up to the hearing of this motion.

32Just as the Society should be provided an opportunity to make a full response on the issues, the Board cannot penalize an applicant for trying to provide additional details to have her issues fully addressed by the Board. The exercise is one of balancing the two competing interests.

33With respect to issues 4, 11 and 12 the fact that the file was closed in March 2016 does not void the Society’s obligation to have heard the Applicant about these issues or to have provided her with reasons for decisions that were made while the file was open.

34As a result, the Board finds that the new issues 1, 2, 4, 5, 6, 8, 9, 11 and12 may be considered subject to our earlier decision on the effect of s. 68.1(8).

35Issue 3 is not a “new issue”. The Applicant was of the opinion that her children were suffering emotional harm at the hands of their father since 2006 and has communicated this fact to the Society since then. She has not been satisfied that, in her opinion, the Society has not taken any action as a result of this harm. There is no new information that was added during the Applicant’s review of the file on this issue. The Applicant is well aware of her own opinions and dissatisfactions and has had ample opportunity to discuss the issue and decisions in that regard.

36Issue 7 is not a “new issue”. The conduct of the Society worker [ ] was addressed at the ICRP meeting in October 2014.

37Issue 10 is not a “new issue”. The Applicant was aware of the length of the investigation of December 2013 and of the fact that the Society did not act on the access supervision issue at the time of the events. There is no new information that was added during the Applicant’s review of the file on this issue. The Applicant is well aware of her own opinions and dissatisfactions and has had ample opportunity to discuss the issue and decisions in that regard.

38Issue 13 relating to decisions made about file disclosure has been dealt by the Court in a number of motions and resulting orders and, accordingly, will not be addressed by the Board.

39Issues 14 and 15 are not “new issues” because they are not issues per se, but rather general statements of societies’ obligations under the Act.

CONCLUSION

40If they wish and 10 days prior to the hearing date to be set, the Society may provide a further response regarding issues A, B, C, 1, 2, 5, 6, 8 and 9 to answer the following questions:

12. Has the Society made this decision?

13. If so, when was the decision made and what reasons for the decision were provided to the Applicant, by what method were these reasons provided and, when were these reasons provided?

41Similarly if they wish, the Society may provide a further response to the new issues 4, 11 and 12 on both the Sections 68.1(4) 4 and 5.

42The parties will be contacted by the Case Coordinator shortly to schedule a pre-hearing teleconference in preparation for the hearing and to schedule the hearing.

CONFIDENTIALITY ORDER

43Pursuant 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, except with an order of the Court or the Board, as appropriate. The parties may show this decision to the Court on the motion that is referenced in this decision.