IK and SK v Children’s Aid Society of Toronto, 2020 CFSRB 32

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

IK and SK

Applicants

-and-

Children’s Aid Society of Toronto

Respondent

DECISION

Adjudicator: Catherine Bickley

Date: April 09, 2020

Citation: 2020 CFSRB 32

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

APPEARANCES

IK and SK, Applicants

Self-represented

Children’s Aid Society of Toronto, Respondent

Nicole Horwitz, Counsel

Introduction

1This is an Application filed by the Applicants with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

2The CFSRB found the Application eligible to proceed under sections 120(4) 4 and 120(4) 5 of the Act. The substantive issue before the CFSRB was set out in the January 7, 2020 Pre-Hearing Report, as follows:

The Respondent did not send pictures of the two children in the Society’s care to the Applicants.

3The Respondent’s motion challenging the CFSRB’s jurisdiction to review the Application was heard on February 21, 2020. The CFSRB provided an interpreter for Mr. K.

4This decision explains:

• why I have granted the Respondent’s motion in part;
• why I dismissed the Applicants’ bias motion; and,
• the next steps in this proceeding.

the law

5The relevant provisions of the Act are:

s.2(2) Unless this Act provides otherwise, a reference in this Act to a parent of a child is deemed to be a reference to,

(a) the person who has lawful custody of the child; or

(b) if more than one person has lawful custody of the child, all of the persons who have lawful custody of the child, excluding any person who is unavailable or unable to act, as the context requires

s.15(2) Service providers shall ensure that children and young persons and their parents have an opportunity to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving;

s.120(4) The following matters may be reviewed by the Board under this section: (…)

4. Allegations that the society has failed to comply with section 15(2).

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

background

6The two children involved in this Application are J (born in July 2012) and R (born in May 2015).

7J was apprehended by the Respondent four months after his birth and on October 15, 2014 the Ontario Court of Justice ordered that he be made a crown ward without access (Children’s Aid Society of Toronto v. S.C. and I.K., Toronto C57964/12). The Applicants’ appeal was dismissed on April 13, 2015 by the Superior Court of Justice (Children’s Aid Society of Toronto v. S.C., 2015 ONSC 2702). A further appeal to the Court of Appeal was dismissed on January 4, 2016 (Children’s Aid Society of Toronto v. S.C., 2016 ONCA 16). On April 10, 2017, the Ontario Court of Justice dismissed Mr. K’s motion for leave to bring a status review (The Children’s Aid Society v. S.C., 2017 ONCJ 240). J was placed for adoption on April 13, 2017.

8R was apprehended by the Respondent at birth and on August 18, 2015 the Ontario Court of Justice ordered that she be made a crown ward without access (Endorsement, C57964/12). The Applicants did not appeal the order. Instead, Mr. K brought a status review application. On November 16, 2016, the Ontario Court of Justice dismissed the status review application and confirmed the order of crown wardship (Children’s Aid Society of Toronto v. I.K., Toronto C7964/12). Mr. K’s appeal was dismissed on June 8, 2017(Endorsement, FS-16-21288).

9In May 15, 2017 and November 2, 2017 decisions, the Ontario Court of Justice placed restrictions on the Applicants’ ability to bring further proceedings in that forum (Children’s Aid Society of Toronto v. S.C., 2017 ONCJ 717 and Children’s Aid Society of Toronto v. S.C., 2017 ONCJ 725).

10The exact date when the Respondent stopped providing the Applicants with pictures of the children is not clear. The Applicants say the date was in May or July 2019 which is significantly after the Applicants ceased to have lawful custody of J and R.

THE APPLICANTS’ BEHAVIOUR DURING THE HEARING

11The hearing on February 21, 2020 was very challenging due to the Applicants’ behaviour. Despite explanations of the process and the reasons for various procedural rulings neither Applicant accepted that they had to follow the adjudicator’s directions and interact respectfully with the adjudicator and the Respondent’s representatives.

12The Applicants’ behaviour was consistently disruptive and disrespectful, including the following:

• leaving the hearing room without permission while the hearing was in progress;
• bringing an excluded witness back into the hearing room;
• using a washroom break to talk with the excluded witness;
• repeatedly interrupting the adjudicator and Respondent counsel;
• repeatedly questioning whether I was “a real adjudicator”.
• continuing to argue after each procedural ruling;
• refusing to accept a copy of the Respondent’s document brief;
• objecting to the Respondent referring to a court case which was itself part of the Applicant’s materials;
• accusing the Respondent of manufacturing court documents; and,
• misstating the decisions in other legal proceedings between the parties.

bias motion

13After I made a number of procedural rulings, the Applicants requested that I step down on the basis that I was biased. I received submissions from the parties and made the following oral ruling:

The test to be considered when there is an allegation of bias was set out in a 1976 Supreme Court of Canada case. That case is called Committee for Justice and Liberty v. National Energy Board [1976 2 (SCC), [1978] 1 SCR 369]. The test is “what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. Would he think that it is more likely than not that the decisionmaker, whether consciously or unconsciously, would not decide fairly.”

In this case, I have given certain directions in order to manage the process. That is within the authority of an adjudicator when conducting a hearing.

I have not rejected any exhibits. I have instead stated that it is premature to deal with them at this time. I have also said that the Applicants can refer to the documents when making their submissions on the jurisdictional issue.

I have not rejected the Applicants’ proposed witness. I have excluded him from the room until it is time for him to testify. This is routine in hearings.

I have directed Mr. K not to make an audio recording of the hearing. There was no advance request to do so as required by the CFSRB’s policies.

I am not convinced that the test for bias has been met in this case.

The request that I step down is dismissed.

14The hearing then continued with submissions from the parties on the Respondent’s jurisdictional motion.

MOTION ON JURISDICTION

15The Respondent brought a motion challenging the CFSRB’s jurisdiction to review this Application. After hearing the parties’ submissions, I reserved judgment.

16Having considered the material before me and the parties’ submissions, I conclude that the motion must succeed with respect to s.120(4)4 of the Act but not with respect to s.120(4)5 of the Act. As a result, the Application will proceed to a hearing on the merits under s.120(4)5 of the Act. The reasons for this decision are set out below.

The Respondent’s Submissions

17The Respondent’s argument has two prongs. First, the Applicants are no longer parents as defined by the Act and thus are not entitled to be heard under s.15(2). Second, the Applicants are not persons who sought or received services from the Respondent as they are no longer parents and their complaint relates to failure of the Respondent to provide information about the children’s current status. Their Application is not a complaint about services previously received.

18The Applicants no longer had legal custody of J and R once each child became a crown ward (October 14, 2014 and August 18, 2015 respectively). As the Applicants were no longer in a legal relationship to J and R, they are not persons who sought or received services in relation to them.

19The Respondents relied on the CFSRB’s decision in DD v. Children’s Aid Society of Toronto, 2018 CFSRB 56. In that decision the CFSRB ruled that because the Applicant no longer had lawful custody of her child once the child became a crown ward and was no longer legally the child’s parent once the child was adopted she was not a parent under s.15(2) of the Act. Therefore she “was not entitled to be heard with respect to services under that subsection” at the time the CFSRB Application was filed.

20In DD, the CFSRB went on to comment, at para 17, as follows:

Even if the Applicant’s complaint could be considered under s.120(4)5 as an allegation that the Society failed to provide reasons for a decision affecting her interests, the decision resulting in the adoption order and the information she seeks, including the information she sought through her adoption disclosure request, have both been dealt with by the courts and are further circumscribed by the law that prohibits the sharing of identifying information respecting the adoption of a child.

The Applicants’ Position

21The Applicant’s submissions did not address the Respondent’s jurisdictional argument. Instead, the Applicants maintained their position that J and R were apprehended, and in the case of J, adopted, illegally. They insisted that their children had not been made crown wards stating “I think it’s somebody else’s case not my child”.

22The Applicants’ submissions consisted primarily of reading into the record a document called “Applicants Arguably Relevant Facts”. That document referred to a decision of the Ontario Court of Appeal: Children’s Aid Society of Waterloo v. D.D., 2011 ONCA 441 and three CFSRB decisions: D.D. v Children’s Services of the Waterloo Region (CFSA s.68), 2009 CFSRB 46, Applicants v. Society (CFSA s.68), 2011 CFSRB 25 and LA v. Kawartha Haliburton Children’s Aid Society (CYFSA s.120), 2019 CFSRB 89. I asked the Applicants to direct my attention to the parts of these decisions they considered relevant. They did not do so. I have reviewed the decisions and do not find them relevant to this motion.

Analysis

23I agree with the Respondent that once the Applicants no longer had legal custody of J and R they were not parents as defined in s.2(2) of the Act. As a result, they do not fall within s.120(4)4 and s.15(2) which apply only to “children and young people and their parents”. The Applicants, therefore, do not have a right “to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving” and the Application cannot proceed under s.120(4)4.

24I disagree with the Respondent that the Applicants cannot proceed under s.120(4)5. That section, which entitles individuals to reasons for decisions which affect their interests, is not limited to persons who are parents or in a particular legal relationship with children. As stated in H.L.B. v. Chatham-Kent Children’s Services (CFSA s. 68), 2012 CFSRB 4 at para 51:

Looking at the statute, the Society’s obligation to provide reasons in section 68.1 (4) 5 [now s.120(4)5] is not confined to “parents”. If that were the case, the obligation would be associated with section 2(2) (a) of the Act, like the right to be heard. The right to reasons for decisions that affect one’s interests is broad and recognizes that there may be persons other than parents who are involved with children under the Act and whose lives may be impacted by Society decisions.

25If the Respondent provided the Applicants with pictures of J and R after the Applicants were no longer parents as defined by the Act, they were providing the Applicants with a service. The Act entitles the Applicants to meaningful reasons for why the Respondent stopped this service. For this reason, the Application can proceed under s.120(4)5.

NEXT STEPS

26I have concluded that the Application can proceed to a determination on the merits under s.120(4)5 of the Act which provides applicants with a right to reasons for decisions that affect their interests. This is a right to a meaningful explanation about decisions that affect one’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8, at para 8, the CFSRB explained:

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

27The CFSRB is not currently holding any hearings in person due to the COVID-19 pandemic. Where possible, hearings are being held by teleconference, videoconference or in writing. Given the Applicants’ behaviour during the February 21, 2020 hearing, I conclude that neither a teleconference or videoconference hearing would be appropriate. Therefore, the hearing will be held in writing.

28On or before April 24, 2020, the Applicants shall make written submissions on whether the Respondent gave them with meaningful reasons for no longer providing them with pictures of J and R. The submissions shall be no longer than 2 double-spaced pages.

29On or before May 8, 2020, the Respondent shall make written submissions on whether it provided the Applicants with meaningful reasons for no longer providing them with pictures of J and R. The submissions shall be no longer than 2 double-spaced pages.

30The Applicants and the Respondent may attach documents to their submissions only if those documents are directly relevant to the provision of pictures.

order

31The Application will proceed to a written hearing on the merits under s.120(4)5.

32The parties shall provide written submissions as set out in paragraphs 27, 28 and 29, above.

confidentiality order

33Pursuant 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.