CHILD AND FAMILY SERVICES

REVIEW BOARD

BETWEEN:

FB

Applicant

-and-

Children’s Aid Society of Toronto

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: March 03, 2020

Citation: 2020 CFSRB 19

Indexed As: FB v Children’s Aid Society of Toronto (CYFSA s.120)

WRITTEN SUBMISSIONS

FB, Applicant

FB, Self-represented

Children’s Aid Society of Toronto, Respondent

Chithika Withanage, Counsel

INTRODUCTION

Introduction

1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).

2On January 14, 2020, the Child and Family Services Review Board (“CFSRB”) received an Application from the Applicant. The Applicant was found eligible to proceed under sections 120(4) and 120(4)5 of the Act.

BACKGROUND

Background

3The Applicant had filed a previous complaint with the Child and Family Services Review Board (“CFSRB”) on August 15, 2018 in relation to the Respondent’s handling of his daughter’s file. This Application was mediated, and a settlement was reached.

4The subject matter of the Applicant’s new complaint (January 2020) was difficult to discern. It appeared to identify the same issues which were settled through mediation (in italics), along with 3 new issues as follows:

1. Denial of access to the child through CAST discretion
2. Inability of the Applicant to communicate with his daughter
3. CAST’s lack of responsiveness to the Applicant’s concerns and CAST’s creation of barriers for to the Applicant since 2017
4. Lack of information provided to the Applicant about the child, including her whereabouts, and a contact for her child care worker in another region
5. Failure by CAST to address the child’s emotional needs and concerning behaviours (e.g. sexualized behaviours)
6. Concerns with the investigation of allegations of sexual interference against the Applicant and placing the Applicant on the child abuse registry without a conviction
7. Concerns that the Child has been exposed to her mother’s alleged sex work
8. CAST’s alleged efforts in supporting the mother to keep the child away from her father

5In its Summary Reply to the Application, the CAST argued the following:

• The CFSRB has no jurisdiction to conduct a review of a matter that is before the court or has been decided by the court
• The Applicant’s questions have been answered through the court process and numerous correspondence with the Applicant’s counsel in the court process
• The Applicant has already received responses to his concerns in response to his August 2018 complaint and settlement
• The current Application represents an abuse of process and nullifies the settlement agreed to by the Applicant and the CAST on October 4, 2018 and the outcome of the non-compliance teleconference
• The current Application should be decided without a hearing and dismissed in its entirety

6In a Case Management Direction (CMD) dated February 5, 2020, the Applicant was asked to provide written submission on four questions:

1. Are there any issues in the current complaint that are not before the court or have not been decided by the court? Refer to Children’s Aid Society of Waterloo v. D.D. cited above? Please identify the issues.
2. Are there any issues in the current complaint that are different from the issues and concerns raised in the August 15, 2018 complaint, and settled on October 5, 2018? If yes, please identify these issues and what makes them different.
3. Would the CFSRB review of the current complaint be an abuse of process given that the CAST alleges that the current complaint is substantially the same as the August 2018 complaint?
4. Whether or not the CFSRB should proceed without an oral hearing and make a decision based on a review of the materials before it.

7The Respondent was not asked to provide submissions as its Summary Response addressed the four issues cited above.

8The Applicant submitted a response on February 21, 2020; however, his response did not address the four issues outlined in the CMD. The Applicant’s submissions consisted of a letter which included new issues/allegations. For example, the Applicant accused the Respondent of systemic racism which has resulted in bias and his unfair treatment. The letter also included concerns related to Respondent’s decision-making around the agency which the Applicant had selected to assist him in reunification; concerns that the Respondent’s staff falsified documents at court; deficiencies in the counselling he was provided through CAST; and his demand that the Respondent rely on Millan & Associates to supervise access; review his CAST file, report back to the Courts with recommendations on how to proceed.

9The submissions also asked the CFSRB to order changes to access and custody decisions by the Court; to mandate reunification with his daughters through Millan & Associates; to move his file to the Scarborough Branch; to mandate disclosure related to medical documentation for his daughters; to remove the Applicant from the Child Abuse Registry; and to mandate DNA testing for his youngest daughter.

THE LAW

The Law

10The Respondent argued that the CFSRB does not have jurisdiction to consider the Application as these issues have been decided by the court. Subsection 120(8) of the Act states:

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

11The Ontario Court of Appeal ruled in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441, that the mere existence of a child protection proceeding does not automatically bar the CFSRB from reviewing a complaint about the services an individual has received from a children’s aid society. In DD the Court found that complaints about how the children’s aid society had handled the temporary placement of the applicant’s children could proceed before the CFSRB. Those complaints “were separate and different from the substantive issues before the court” (para 35).

12The Respondent also argued that it is an abuse of process for the CFSRB to address issues in the current complaint which have been settled in the previous settlement agreement.

13In respect to the issue of Abuse of Process, the CFSRB Rule of Procedure A8 allows the CFSRB to make orders or give directions it considers proper to prevent abuse of its processes. Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CUPE) comments on abuse of process as it relates to relitigating the same issue as follows:

1. There can be no assumption that relitigation will yield a more accurate result than the original proceeding
2. If the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties, and possibly an addition hardship for some witnesses
3. If the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in an of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

14In addition, Workers’ Compensation Board v. Figliola 2011 SCC 52 provides direction to administrative tribunals in relation to fairness issues and finality in decision-making:

That means that the Tribunal should be guided less by precise doctrinal catechism and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them. Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matter they through had been conclusively resolved. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them.

15The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or video-conference. Subsection 8.1 of the Rules state:

In deciding the format of a hearing, the CFSRB will consider:

a) whether it is a fair and accessible process for the parties; b) the costs and efficiency of the process; c) the potential for a more expeditious resolution; d) the convenience of the parties; e) the consistency with the CFSRB’s mandate; f) whether the facts or evidence may be agreed upon; g) the estimated duration of the hearing; h) whether the issues for hearing are predominantly legal issues; i) whether oral testimony is likely to be needed; j) any objections to the format of the hearing.

ANALYSIS

Analysis

16My analysis of this complaint focuses on three questions:

1. Can the complaint be decided through a hearing in writing based on submissions and the information before the CFSRB?
2. Does the CFSRB have jurisdiction to hear the complaint based on the provisions of section 120(8) of the Act?
3. Does the submission of a second complaint which is similar to a previous complaint that was heard and settled by the CFSRB amount to an abuse of process?

WRITTEN DECISION

Written Decision

17The Applicant did not provide submissions regarding proceeding with a review of his complaint in writing. In a letter dated January 23, 2020, the Respondent submitted that the Application should be decided without a hearing; however, no rationale was provided. I therefore considered the totality of the evidence before me in deciding the best approach to decide this complaint.

18I note that the Applicant and the Respondent have a long and acrimonious history. An affidavit by Franz Noritz (Exhibit E in the Respondent’s Summary Response) indicated that the Applicant: “has a history of being volatile with Society workers, making unsubstantiated allegations against them, requiring numerous worker changes”. The Applicant’s submissions argue that the Respondent is racist and biased towards him. Given the past negative history between the parties, I find that engaging in an oral hearing could possibly serve to enflame tensions between the parties which could result in an unfair process, and longer-term problems between the parties.

19I reviewed the content of the complaint, as well as the content of the Applicant’s previous complaint, settlement agreement, and non-compliance decision. As outlined below, I find that the issues are virtually identical, and I therefore find that the Applicant had an ample opportunity to present his evidence and arguments before the CFSRB. There is no need to re-hear evidence that has been presented and decided in a previous complaint.

20The Applicant’s submissions deal extensively with the issue of reunification and the role of Millan & Associates in this process. Allegations of systemic racism were not included in the January complaint. As these issues were not part of the Applicant’s complaint, I cannot address them in this decision.

21Finally, I note that almost all the current complaint deals with section 120(8) issues which are legal in nature and narrow in scope. The Applicant had an opportunity to provide written submissions on whether any of the issues are before the Court or have been decided by the Court; and if any of the issues in his current complaint are different than those settled in the previous complaint. The Applicant did not make submissions on these issues. The Respondent supports a hearing without oral testimony.

22Based on the lack of submissions by the Applicant and the Respondent’s request, I find that neither party objects to the hearing proceeding in writing. I also find that a written review is the most expeditious and efficient method of reviewing this complaint.

CFSRB JURISDICTION

CFSRB Jurisdiction

23The Respondent submitted that the Applicant’s concerns have been answered through the court process and through correspondence with the Applicant’s counsel in the court process. As such, the CFSRB does not have jurisdiction to review the complaint. A review of the documentation provided by the parties confirmed the following:

• The Ontario Court of Justice has placed the Applicant’s child in the care and custody of her mother (Exhibit B – Order dated November 5, 2018)
• The Ontario Court of Justice has ordered that the Applicant may have written contact with the child and that any further contact or access between the Applicant and her father is subject to and in accordance with the child’s wishes (Exhibit A – Order dated January 9, 2019)
• The Superior Court of Justice has been presented with the issue of unredacted disclosure (Exhibit E – Motion dated December 10, 2019)
• Superior Court of Justice Endorsement dated September 7, 2019 (provided by the Applicant in his submissions) addressed concerns regarding the Applicant’s daughter’s sexualized behaviours; the arrest of the Applicant for sexual assault and sexual interference; the verification of the sexual abuse concerns by the Respondent; no-contact order between the Applicant and his daughter and former partner; and an access order by Justice Curtis

24The Applicant’s complaint included the following 8 issues:

1. Denial of access to the child through CAST discretion
2. Inability of the Applicant to communicate with his daughter
3. CAST’s lack of responsiveness to the Applicant’s concerns and CAST’s creation of barriers for to the Applicant since 2017
4. Lack of information provided to the Applicant about the child, including her whereabouts, and a contact for her child care worker in another region
5. Failure by CAST to address the child’s emotional needs and concerning behaviours (e.g. sexualized behaviours)
6. Concerns with the investigation of allegations of sexual interference against the Applicant and placing the Applicant on the child abuse registry without a conviction
7. Concerns that the Child has been exposed to her mother’s alleged sex work
8. CAST’s alleged efforts in supporting the mother to keep the child away from her father

25Based on the evidence presented, I find that issues related to access, communication, information about his daughter (including her location), disclosure of unredacted documents, alleged support by the Respondent of the child’s mother, allegations of sexualized behaviour by the Applicant’s daughter; allegations of alleged sexual abuse by the Applicant; and what is in the best interests of the child (Issues 1, 2, 4, 5, 6, and 8) were squarely before the Court.

26I considered issue 7 (concerns that the Child has been exposed to her mother’s alleged sex work). The Applicant did not provide any evidence or argument in his submissions related to this allegation. The Applicant was represented by counsel throughout the access and custody proceedings. It would be reasonable to expect that issues related to the Applicant’s former partner’s alleged sex work and its impact on the child would have been raised in court proceedings, especially as the Court is tasked to make findings on custody and access issues in the best interests of the child. Furthermore, I note that the Applicant’s concerns regarding his daughter’s sexualized behaviours were addressed in a September 2019 Court Endorsement.

27The Applicant has not provided submissions related to whether any of the above-mentioned issues are separate or different from the issues before the Court. Having reviewed the evidence before me, I find that the issues were not separate or different than issues that were before the Court.

28For the reasons outlined above, I find that the CFSRB does not have jurisdiction to conduct a review of issues 1, 2, 4, 5, 6, 7, and 8 as these issues were clearly before the Court and are exempt from review as per section 120(8) (a) of the Act.

SIMILARITY BETWEEN COMPLAINTS OF 2018 AND JANUARY 2020

Similarity Between Complaints of 2018 and January 2020

29In his January 2020 complaint, the Applicant included the following five issues:

1. denial of access to the child
2. society unresponsiveness since 2017 and creating barriers to the father
3. lack of information about the child
4. failure to address the child’s emotional needs and concerning behaviour
5. investigation of allegations of sexual interference

30These issues formed the basis of a mediation on October 5, 2018. The parties agreed to the following two terms of settlement as a full resolution of the issues identified in the complaint:

1. The Society agrees to provide a letter via e-mail to the Applicant, copy to his support person, Mr. Tafari, outlining the role of the Society and other society involved in his case (Implementation date, October 12, 2018).
2. The Society agrees to schedule a meeting with the Applicant, the Family Service Worker, the Family Service Supervisor, Mr. Tafari, counsel for both parties to discuss and determine how the parties will communicate. A summary of the discussion will be provided to the Applicant in writing (Implementation date – December 20, 2018).

31The Applicant alleged non-compliance and the CFSRB held a teleconference and issued a decision confirming that the Respondent had complied with the terms of the settlement agreement.

32The Applicant’s January 2020 complaint contained the following allegations:

1. Denial of access to the child through CAST discretion
2. Inability of the Applicant to communicate with his daughter
3. CAST’s lack of responsiveness to the Applicant’s concerns and CAST’s creation of barriers for to the Applicant since 2017
4. Lack of information provided to the Applicant about the child, including her whereabouts, and a contact for her child care worker in another region
5. Failure by CAST to address the child’s emotional needs and concerning behaviours (e.g. sexualized behaviours)
6. Concerns with the investigation of allegations of sexual interference against the Applicant and placing the Applicant on the child abuse registry without a conviction
7. Concerns that the Child has been exposed to her mother’s alleged sex work
8. CAST’s alleged efforts in supporting the mother to keep the child away from her father

33With the exception of allegation 2, 7 and 8, the remaining allegations in the 2020 complaint (1, 3, 4, 5, and 6) are identical to those resolved through the mediation and settlement process.

34I find that proceeding with these issues would amount to duplication and an abuse of process for several reasons. One, relitigating the same issue in the same forum would result in unnecessary costs to the CFSRB and the Respondent. Two, placing the CFSRB in a position where it may make findings which conflict with a previous CFSRB decision on the same matter (issue estoppel) will result in undermining the credibility of the CFSRB as a tribunal. Three, parties are entitled to finality in judicial decision-making.

35In coming to this decision, I have relied on the direction of Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CUPE), (cited above), on the impact of an abuse of process on the integrity of the adjudicative process. In addition, I considered the direction of Worker’s Compensation Board v. Figliola 2011 SCC 52 in relation to fairness and finality in decision-making.

ORDER

Order

36For the reasons outlined above, I find that the CFSRB does not have jurisdiction to conduct a review of issues 1, 2, 4, 5, 6, 7, and 8 as they are issues that are before the Court or have been decided by the Court. In addition, I find that addressing issues 1, 3, 4, 5, and 6 would amount to an abuse of process as these issues were dealt with in the terms of the previous settlement agreement. As such, the Applicant’s complaint is dismissed in its entirety.

CONFIDENTIALITY ORDER

Confidentiality Order

37Pursuant 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.