BS v. Children’s Aid Society of Ottawa, 2020 CFSRB 22

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

BS Applicant

-and-

Children’s Aid Society of Ottawa Respondent

DECISION

Adjudicator: Daniel McSweeney Date: March 16, 2020 Citation: 2020 CFSRB 22 Indexed As: BS v Children’s Aid Society of Ottawa (CYFSA s.120)

WRITTEN SUBMISSIONS

BS, Applicant Self-represented

Children’s Aid Society of Ottawa, Respondent Mark Hecht, Counsel

Introduction AND BACKGROUND

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”).

2The Applicant was found eligible to proceed under the following sections of the Act:

• The Society has refused to proceed with a complaint made by the Applicant (section 120(4)1 CYFSA, 2017).
• The Society has failed to respond to the Applicant’s complaint within the required time (section 120(4)2 CYFSA, 2017).
• The Society has failed to comply with the complaint review procedure or with any other procedural requirements (section 120(4)3 CYFSA, 2017).
• The Applicant was not given the opportunity to be heard and represented when decisions affecting his/her interests were made, or a chance to be heard when he/she raised concerns about the services he/she is receiving (section 120(4)4 CYFSA, 2017).

3The Applicant was concerned that the Respondent refused to consider her complaint (the interviewing of her children without the consent and presence of their parents) through the Internal Complaint Review Process (ICRP) as per section 119(2) of the Act. This concern included the Respondent failing to follow the established ICRP timeframes and procedures within the Regulations.

4The Applicant also alleged that her concerns regarding the serving of the Respondent’s Court Motion were not heard by the Respondent and that the short turnaround times on the Motion denied her an opportunity to be heard. The Applicant was also concerned that the Respondent filed its Motion and the child protection application with the wrong Court.

5The Applicant’s concerns were related to decisions regarding custody and access of her children, and the Respondent’s role in the Court proceedings related to these issues.

6The Applicant wanted the CFSRB to:

• Review and decide the complaint based on sections 120(5) and 120(7) of the Act
• Dismiss and strike from the record the child protection application and any and all orders that were unlawfully made based on them
• Return her children to her
• Require the Lieutenant Governor in Council to enable the CFSRB to make the above-noted orders
• Recommend to the Minister of Children and Youth Services to appoint a judge to investigate the proper administration of Part 5 of the Act and make a written report to the Minister to improve services

7The Applicant also alleged that the Respondent engaged in reprisals against her and her family because she launched an ICRP complaint.

8In its Summary Reply to the Complaint, the Respondent argued that the Applicant’s allegations that she was not heard when decisions were made affecting her interests and that the Respondent refused to proceed with the complaint and follow its complaint review process were erroneous.

9The Respondent also argued that the relief which the Applicant sought is outside the jurisdiction and scope of the CFSRB’s mandate.

10The parties participated in a Pre-hearing/Mediation on December 3, 2019 during which a follow-up Pre-Hearing Teleconference was scheduled for January 21, 2020. The Applicant indicated on January 20, 2020 that she was unavailable for the Teleconference. The Respondent indicated that the Applicant was incarcerated and was to be released on January 27, 2020.

11The Member issued the following directions:

• The hearing will be conducted in writing pursuant to Rule 8 of the CFSRB’s Rules of Procedure
• The Applicant shall provide her evidence and written submissions to the CFSRB and send a copy to the Respondent on or before February 10, 2020, and the Respondent on or before February 24, 2020.

12The Applicant did not provide any additional evidence and/or written submissions by February 10, 2020.

13The Respondent provided an additional response to the CFSRB on February 14, 2020 which reiterated its arguments of October 16, 2019.

THE LAW

14Section 15(2) of the Act indicates: “service providers shall ensure that children and young persons and their parents have an opportunity to e heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.”

15Section 120 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.

16Subsection 119 (11)(a) of the Act states that:

A society 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

17Section 119(10) of the Act sets out the remedies available to the CFSRB in relation to ICRP service complaints:

Upon completing its review of a decision by a society in relation to a complaint, the Board may,

a) in the case of a matter described in subsection 120(4), make any order described in subsection 120(7), as appropriate; b) redirect the matter to the society for further review c) confirm the society’s decision; or d) make such other order as may be prescribed

18Section 120(7) of the Act sets out the remedies available to the CFSRB in relation to service complaints: as follows:

After reviewing the complaint, the Board may,

a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation; b) order the society to provide a response to the complainant within a period specified by the Board; c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act; d) order the society to provide written reasons for a decision to a complainant; e) dismiss the complaint; or f) make such other order as may be prescribed.

19The 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

20In considering the Application, I considered four issues:

1. Should the CFSRB proceed with a hearing in writing?
2. Was the Applicant provided with an opportunity to be heard?
3. Did the Respondent have the jurisdiction to address the Applicant’s concerns through the ICRP process?
4. Does the CFSRB have the jurisdiction to implement the remedies suggested by the Applicant in her complaint?

WRITTEN HEARING

21The Pre-Hearing Report of January 21, 2020 included a direction by the member that the hearing would be conducted in writing pursuant to RPD Rule 8. Neither party submitted any motions or submissions on the issue of a written hearing. I take this as their consent to proceed with a review in writing.

22In addition, after having reviewed all the documentation before me, I find that the complaint deals with two legal issues: the CFSRB’s jurisdiction to review a matter that is before the Court or has been decided by the Court; and the CFSRB’s jurisdiction related to remedies suggested by the Applicant. The parties were provided with an opportunity to provide evidence and written submissions on these 2 issues. The Applicant was provided with an opportunity to provide written submissions on the issue of not being given an opportunity to be heard. She did not make any submissions by February 10, 2020, the date provided to her in the Case Management Direction; however, I note that her application and attachments were significantly detailed (approximately 7 single spaced typed pages). The Respondent provided submissions on the issue of eligibility.

23The Applicant did not provide submissions or evidence to support her allegations. The Applicant bears the onus to support her complaint. In the absence of submissions, I made my findings on the materials before me.

24I find that there is no prejudice against any party in proceeding with a review of the complaint in writing. Proceeding in writing will bring finality to the complaint in the most expeditious fashion for all parties.

OPPORTUNITY TO BE HEARD

25The Applicant alleged that she was not provided with an opportunity to be heard in relation to Court decisions on custody and access. She alleged that the timelines for the Motion did not provide her with an opportunity to be heard when issues of access and custody were discussed and decided at Court. She alleged that the Respondent’s motion was submitted to the wrong Court.

26Her complaint also alleged that the Respondent failed to comply with subsection 15(2) of the Act.

27I find that the Respondent is not responsible for the timelines associated with Court processes. In addition, I note that timelines for child protection motions can vary depending on the content. The CFSRB also has no jurisdiction over Court timelines. Finally, I note that, if the Applicant had concerns with fairness in the Court processes or if she felt that the Respondent submitted the motion to the wrong Court, it was incumbent on her to raise these concerns before the Court. The CFSRB complaint process is not the appropriate forum to seek a remedy that is available to her through the Courts.

28In addition, I considered whether the Respondent was heard by the Society in relation to her child protection concerns.

29The Respondent indicated that the Applicant brought 3 service complaints to the Respondent’s management before filing her complaint with the CFSRB. The Respondent contended that the Applicant was provided an opportunity to be heard and that her concerns were responded to.

30The Respondent provided evidence (letter dated July 30, 2018) which confirmed that the Applicant’s concerns expressed in July 2018 were heard and responded to. The letter confirmed that the Respondent heard and responded to the Applicant’s concerns related to the requirement for supervised access; access scheduling; and included a request for a meeting to discuss next steps and how to move forward.

31The Respondent provided a letter from the Service Director dated August 22, 2018 regarding the Applicant’s formal request to meet with the Respondent’s Executive Director and a summary of issues discussed at an August 20, 2018 meeting with the Service Director. The Applicant identified the following issues:

• The Applicant’s concerns that the Society overstepped its mandate in becoming involved with the Applicant’s family
• The Applicant’s concerns that she did not have an opportunity to express her perspective during the Court and concerns that the Court Order was based on falsified and erroneous information produced by the Respondent
• The Applicant’s concerns as to why access was being supervised and why the Respondent did not clearly articulate what its worries were with the Applicant’s parenting
• The Applicant’s request that the Respondent provide updated and accurate information to the Court thereby appealing the Order placing the children with their father

32The Applicant also had an opportunity to suggest remedies to the issues. The August 22, 2018 letter included a review of the Respondent’s child protection concerns and verifications and the Respondent’s position regarding access to the Applicant’s children.

33A final letter dated September 6, 2018 indicated that the Applicant met with two Service Directors to discuss her concerns.

34The Respondent contends that the Applicant was provided with at least 3 opportunities to speak with senior staff and that her concerns were listened to and investigated by the Respondent.

35Based on the evidence before me, I find the Applicant was provided with an opportunity to be heard in relation to the Court issues as well as in relation to Respondent decisions that affected her interests and the interests of her children pursuant to section 15(2) of the Act.

Respondent Jurisdiction to Address Concerns Through ICRP Process

36The Applicant alleged that the Respondent failed to engage in the ICRP process. Her complaint included a letter dated April 5, 2018 with the subject line: “Complaint Against the Children’s Aid Society of Ottawa”. The complaint was addressed to the Children’s Aid Society’s Internal Complaint Review Panel. The letter dealt with the Applicant’s concerns related to the interviewing of her children and the impact of the Respondent’s investigation on the Applicant’s privacy, her reputation in the school community, and the fact that she felt harassed by the Respondent. The letter closed with a request that the Respondent provide the Applicant with advanced notification and sufficient grounds to interview her children in the future; provide the Applicant with information on recourse available to families who experience harm based on an unwarranted investigation by the Respondent; and provide the Applicant with information on how the Respondent will protect families from harassment and protect their privacy.

37The Application also included a statement given by the Applicant to the Respondent during a meeting of April 11, 2018.

38Only the Applicant addressed the issue of whether this April 5, 2018 letter contained a formal request for an ICRP process or was viewed as a formal ICRP request. What is known is that, shortly after the letter, the Applicant was provided an opportunity to be heard by the Service Director and Supervisor at an April 11, 2018 meeting. The Applicant indicated that the participants in the meeting did not identify themselves as a review panel, and that she was not provided with a summary of the results or agreed upon next steps. There is no evidence before me that the Applicant followed up with the Respondent to indicate that she had formally requested an ICRP process and that the Respondent had failed to comply with its mandate in relation to an ICRP. The Applicant chose to raise her concerns some 17 months after in the form of a complaint to the CFSRB.

39Ontario Regulation 156/18 sections 56-64 deal with complaints to a Society. Section 56 indicates that: “A complaint to a society under subsection 119(1) of the Act must be made in the form entitled “Formal Complaint to a Society’s Internal Complaints Review Panel (ICRP)”.

40Given that the Applicant’s April 5, 2018 letter did not specifically request an ICRP process as per section 56 of the Regulations (although it was addressed to the CAS Internal Complaint Review Panel); given that the Respondent did not view the letter as a request for an ICRP process; given that the Respondent did not make reference to an April 2018 ICRP request in its submissions on jurisdiction; given that the Applicant did not follow-up on her concerns that the Respondent had not complied with the formal ICRP requirements until some 17 months after the initial request; given that the Applicant did not provide any evidence of subsequent attempts to inform the Respondent that her April 5, 2018 letter was a formal ICRP request; and given that the Applicant was provided with an opportunity to speak to Respondent staff about her complaint on April 11, 2018, I find that there was no meeting of the minds between the parties that the April 5, 2018 letter initiated a formal ICRP process.

41As such, I find that the Respondent did not fail to comply with the provisions of the Act and Regulations governing ICRP processes. I therefore dismiss this part of the complaint.

42In its submissions, the Respondent indicated that the ICRP process was not an option for the Applicant as the Act precludes the ICRP process once the matter has been decided by the Courts.

43The Applicant’s concerns relate to the handling of the Respondent’s child protection motion and its dealings related to the ICRP process. Issues related to custody and access and the Respondent’s dealings with the Applicant were decided by the Court on July 18, 2018. It is unknown whether any of the Applicant’s concerns pre-date the Court decision.

44Pursuant to section 119(11) of the Act, the Respondent cannot review a matter that is an issue that has been decided by the court or is before the court. The Courts have issued an interim care and custody order and provided for the Respondent to decide access at is discretion on two occasions.

45Given that the Applicant’s access and custody concerns have been addressed by two Court orders, I find that the Respondent does not have jurisdiction to address these issues through the ICRP process pursuant to section 119(11) of the Act.

CFSRB Jurisdiction Regarding Remedies

46In addition to having her complaint reviewed by the CFSRB, the Applicant requested that the CFSRB do the following:

• Dismiss and strike from the record the child protection application and any and all orders that were unlawfully made based on them
• Return her children to her
• Require the Lieutenant Governor in Council to enable the CFSRB to make the above-noted orders
• Recommend to the Minister of Children and Youth Services to appoint a judge to investigate the proper administration of Part 5 of the Act and make a written report to the Minister to improve services

47As outlined above, section 120(7) of the Act limits remedies that the CFSRB can implement in relation to service complaints. None of the remedies suggested by the Applicant are available to the CFSRB. In fact, the remedies suggested fall well outside the jurisdiction of the CFSRB. As such, I find that the CFSRB does not have the jurisdiction to consider the remedies requested by the Applicant.

DECISION

48For the reasons outlined above I dismiss the Applicant’s complaint in its entirety.

49I find that the most appropriate forum for having concerns related to fairness in the Court process is before the Courts and not before the CFSRB. In addition, the CFSRB does not have jurisdiction to review a Court’s decisions or processes.

50I find the Applicant has had an opportunity to have her concerns heard by the Respondent and that she has been provided with reasons for the Respondent’s actions in relation to her concerns.

51I find the Respondent does not have the jurisdiction to address matters that are before the Court or have been decided by the Court through its ICRP process.

52I find that the CFSRB does not have the jurisdiction to consider or order the remedies highlighted by the Applicant in her complaint.

CONFIDENTIALITY ORDER

53Pursuant 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.