SC v. Children’s Aid Society of Ottawa, 2019 CFSRB 91

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SC Applicant

-and-

Children’s Aid Society of Ottawa Respondent

JURISDICTIONAL DECISION

Adjudicator: Daniel McSweeney Date: November 25, 2019 Citation: 2019 CFSRB 91 Indexed As: SC v Children’s Aid Society of Ottawa (CYFSA s.120)

WRITTEN SUBMISSIONS

SC, Applicant Self-represented

Children’s Aid Society of Ottawa, Respondent Julie Daoust, Chief Counsel

Introduction

1This is an Application filed under section 120(4)4 of the Child, Youth and Family Services Act, 2017, SO 2017, c14, (the “Act”).

2A pre-hearing conference was held on August 21, 2019 during which the parties were unable to reach a settlement agreement. At the pre-hearing conference, the Applicant confirmed that his complaint related only to his contact with the Respondent on October 22, 1995.

3On September 4, 2019, the Child and Family Services Review Board (“CFSRB”) received submissions from the Children’s Aid Society (the “Society”) that the CFSRB did not have jurisdiction to review the complaint as the Applicant was not in receipt of a service provided by the Society. On September 20, 2019, the Applicant provided submissions in response to the Society’s position accompanied by a brief of documents.

4Based on a review of the Applicant’s brief of documents, the parties were directed to provide additional submissions on the question of the CFSRB’s jurisdiction to hear the Application based on the exemption for regarding reviews of issues decided by the Court or is before the Court. The parties were given until November 14, 2019 to provide submissions.

5The Respondent’s submissions were received on October 31, 2019, and the Applicant’s submissions were received on November 19, 2019.

THE LAW

6Section 120(1) of the Act provides that, if a person has “a complaint in respect of a service sought or received from a society [and the complaint] relates to a matter described in subsection (4), the person who sought or received the service may decide” to make a complaint to either the society or the CFSRB.

Section 2 of the Act defines “service” as follows:

“service” includes,

a) a service for a child with a developmental or physical disability or the child’s family b) a mental health service for a child or the child’s family, c) a service related to residential care for a child, d) a service for a child who is or may be in need of protection or the child’s family, e) a service related to adoption for a child, the child’s family or others, f) counselling for a child or the child’s family g) a service for a child or the child’s family that is in the nature of support or prevention and that is provided in the community, h) a service or program for or on behalf of a young person for the purposes of the Youth Criminal Justice Act (Canada) or the Provincial Offences Act, or i) a prescribed service; (“service”)

7Section 120 (8)(a) of the Act states that:

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

8The Applicant’s complaint focused on an incident of October 22, 1995 in which he and his daughter were assaulted by his ex-wife. The complaint alleged that the Respondent failed to investigate the assault; it was biased in favour of the mother; it did not investigate thoroughly, objectively and professionally the Applicant’s concerns about his ex-wife; and the Respondent acted in bad faith as new evidence was adduced. The Applicant alleged that the Respondent’s behaviour amounted to a violation of its fiduciary and statutory duty.

9The Applicant launched a civil suit against the Respondent in October of 2016 alleging negligence, breach of duty of care and breach of fiduciary duty related to its handling of an incident where the Applicant and his daughter were assaulted. The Applicant submitted that the Subsection 120(8)(a) does not apply in this review as the Applicant’s case before the Ontario Superior Court of Justice (see below) was struck on October 24, 2016 as it exceeded the limitation period.

10The Respondent submitted two arguments in support of their position that the CFSRB did not have jurisdiction to hear the complaint. Firstly, the Applicant did not seek or receive services from the Respondent in and around October 22, 1995. Secondly, the Applicant’s complaint was an issue that was before the court or had been decided before the court in response to child protection proceedings.

11The Respondent submitted that the CFSRB did not have jurisdiction to hear the complaint as per subsection 120(8) of the Act. The Applicant had raised the subject matter of his complaint before the Family Court in the context of child protection hearings. The Respondent did not comment on whether or not the CFSRB had jurisdiction to review the Application in regard to the Applicant’s 2016 civil suit.

ANALYSIS

Was the Applicant in receipt of services?

12The Respondent focused its argument on the specific date of October 22, 1995. It submitted that no services were sought or received on October 22, 1995. The Respondent received a call from someone in the community on that date; however, the call did not come from the Applicant. The Respondent indicated that no services were rendered that day and provided evidence (case notes, affidavit, letter) to support this position. A review of the documents provided by the Applicant confirms that he had been provided with a service as per the definition in the Act.

13I carefully reviewed the documents presented by the Applicant and the Respondent regarding the service issue and applied the definition of service from the Act, especially item j) a service for a child who is or may be in need of protection or the child’s family.

14The letter by the Intake Supervisor (Respondent’s Exhibit A) indicated that: “Emergency Services social worker, MT, deemed it necessary to have the local O.P.P. officer look into the matter. This was an appropriate action…MT then spoke to both yourself and your wife on the phone.”

15At Tab F, on page 4 of the Notes from O.P.P. a notation indicated:

“CAS was contacted to discuss situation. They were not willing to take Child unless child was in an immediate danger (Not So). CAS social worker spoke to both parents and advised them that they would be involved in making an assessment.”

16I note that the affidavit from JVB who was a Supervisor with the Respondent (Tab I) states:

“The involvement of the Society first occurred on October 22, 1995, following a report by a family friend about instability in the relationship between Mr. and Mrs. C, and the lack of hygiene in the home. M OPP investigated and found Mr. C to be stable, but confirmed the home was dirty and rat and flea infested. Mrs. C was contacted and confirmed that Mr. C had never harmed her child. Mrs. C subsequently moved to a women’s shelter. No protection concerns were identified and the case was closed as a brief service.” [emphasis added]

17A further affidavit in Tab J from DS, then Child Protection Worker with the Respondent, indicated that:

“October 1995 Four EAHS reports received. SC had left S and went to a shelter with her 2year old [sic] daughter, AC due to concerns regarding S’s controlling behaviour. SC was concerned for AC’s safety due to concerns he had about SC’s mental state. File closed and SC was referred to his lawyer”.

18A Director’s review Report in Tab O indicates on page 3 that:

“On October 22, 1995, the Society is contacted in relations [sic] to a family situation where a mother wants to retrieve her daughter from the home and go to a shelter. Police attend to the home and while there the Society emergency worker is contacted by telephone. It is agreed by all at that time that the situation has been stabilized and that the Society will follow-up with a visit on Monday the 23rd and that both parents and child are to remain in the home.”

19On page 5, the Report goes on to state:

“Later the same day…The father is advised by the Society that the events are now pointing to a custody debate between the parents and that the Society does not have a role as the child is in a safe environment.

It should be noted that the file contains evidence of these discussion [sic] between the Society and the father about these facts. A worker did call the home on Monday October 23, 1995 to discuss the situation as described above. Mr. C confirms that such contact was made.”

20It is clear from the documents cited above that Respondent staff were engaged in receiving a child protection call or calls that related to the Applicant and his daughter; that the Respondent’s staff investigated the reports and made an assessment regarding the risk of harm to the child; staff made a determination that the situation related to custody; but that the Respondent would follow-up with the Applicant sometime shortly after October 22, 1995. In addition, the documents produced by Respondent staff shortly after the incident refer to the Respondent’s interventions as “brief service” and indicate that the “file was closed”.

21Based on the Respondent’s actions on and around October 22, 1995, I find that the Applicant had received a service as a family member for a child whose risk of harm was assessed by the Respondent. As such, I find the CFSRB has jurisdiction to proceed with assessing the complaint as it deals with a service sought or received from a society as per section 120(1) of the Act.

Were the issues in the Application decided by the court or are before the court?

22The Respondent’s submissions indicated that the Applicant had raised his concerns about the events of October 22, 1995 to the Court in two affidavits: October 14, 1998, and December 8, 1995 (attached to the submissions). While these affidavits speak to the events of October 22, 1995; they focus on the Applicant, his wife, and child protection concerns over time. These affidavits do not go to the heart of the Applicant’s complaint regarding the actions of the Respondent in and around October 22, 1995, including allegations of bias and bad faith on the part of the Respondent, and the Respondent’s failure to carry out its duties. As such, I find the Respondent’s submissions not to be sufficient to support its argument that the Applicant’s complaints have been decided by the Court or are issues before the Court.

23I then turned to the submissions and documents provided by the Applicant in support of his complaint. I note that, in Tab R of the Applicant’s documentary package, is a Statement of Claim which was filed with the Ontario Superior Court of Justice on April 15, 2016 under File No: 16-68273 which named the Respondent as the defendant. The Statement of Claim alleged that the Respondent breached its fiduciary and statutory duty to:

“give proper consideration and to take all reasonable steps to protect and pursue the best interest of the child and her care giver from assaults and abduction on October 22, 1995 to which the plaintiffs were victim…the defendants were negligent in failing to investigate the assault and abduction of the child thoroughly and to take reasonable care to protect the child and father’s rights from criminal or tortuous acts to which the plaintiffs were victim.”

24In Tab R, the Applicant included a 28-page detailed account in the Statement of Claim which addresses the October 22, 1995 incident; the Society’s actions in response to the incident; and the impacts on the family.

25In his submissions, the Applicant provided the decision by the Ontario Court of Justice. In the decision, the Court found that the suit was not actionable as the limitation date of January 1, 2004 had expired. As such, the claim against the Respondent was struck as it had no chance of success. The Court then dismissed the action under Rule 21.01(3)(d) as frivolous, vexatious and an abuse of process given that the Applicant had no chance of success as the limitation period expired 15 years prior to the claim. In addition, the Court found that the Respondent failed to plead any material facts to support his bald allegation of negligence against the police and the CAS. The claim was struck without leave to amend.

26The Court’s refusal to address the suit based on the expiration of time limits did not provide the Applicant the opportunity to have the merits of his allegations addressed by the Court. As such, I find that the Applicant’s application is not subject to subsection 120(8) of the Act. The CFSRB has jurisdiction to consider the Application.

ORDER

27The CFSRB has the jurisdiction to review the Applicant’s complaint.

CONFIDENTIALITY ORDER

28Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions, or any other documents or information provided or used in this Application, with anyone including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.