SC v. Children’s Aid Society of Ottawa, 2020 CFSRB 52

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SC Applicant

-and-

Children’s Aid Society of Ottawa Respondent

DECISION

Adjudicator: Catherine Bickley Date: June 03, 2020 Citation: 2020 CFSRB 52 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, Counsel

Introduction

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

2The Child and Family Services Review Board (“CFSRB”) found the Application eligible to proceed under subsection 120(4)4 of the current Act.

3The Respondent challenged the CFSRB’s jurisdiction, arguing the Applicant was not a person in receipt of services and the subject matter of the Application had been decided by a court. In a November 25, 2019 interim decision the CFSRB rejected these arguments: SC v Children’s Aid Society of Ottawa, 2019 CFSRB 91, and the Application proceeded to a hearing.

4After the January 24, 2020 hearing, the CFSRB directed the parties to make written submissions on the following question:

Section 68.1 of the Child and Family Services Act R.S.O. 1990, c.C.11 [the former Act] did not come into force until 2006. Can the CFSRB make a finding about whether the Applicant’s concerns were heard with respect to a time period before the CFSRB existed and before section 68.1 was in effect?

5In answering this question, I have reviewed the parties’ submissions, the relevant case law and the provisions of the Child and Family Services Act, R.S.O. 1990, c.C.11 (“the former Act”) both before and after November 30, 2006 (the date on which the option to apply to the CFSRB came into effect).

conclusion

6The CFSRB may review applications about events that took place before section 68.1 was in effect. It may only do so if those events have not already been the subject of a children’s aid society’s internal complaint review procedure.

7I find the subject matter of the Application was dealt with both through the Respondent’s internal complaint review procedure and a review by a person appointed by the Minister of Children’s Services (“Director’s Review”). As a result, the CFSRB lacks jurisdiction to review this Application.

the law

8The relevant sections of the current Act and the former Act are attached as Appendix A.

background

9The Respondent was involved with the Applicant and his family over several years. The Application focuses on the Respondent’s actions, and lack of action, related to an October 22, 1995 incident at the Applicant’s home involving the Applicant, his young daughter, his ex-spouse and the police.

10The Applicant states Respondent staff promised to take action to protect his children from his ex-spouse. Instead, the Respondent closed its file on October 24, 1995, classifying its interaction with the Applicant regarding the October 22, 1995 incident as a brief service.

11The Applicant made several complaints to the Respondent about its response to the October 22, 1995 incident. These complaints included a November 11, 2002 letter to the Respondent’s Board of Directors. The Respondent’s executive director responded by letter dated December 5, 2002, stating:

I reviewed your request for a complaint review with the President of the Board, Mr. Dennis Nolan. Mr. Nolan and I determined that your complaint was not eligible for review by the Board for the following reasons.

12The letter listed the following three reasons. First, the complaint does not identify any specific redress being sought. Second, the complaint dealt with matters before the court. Third, “we found that the Society had already and appropriately responded to your concerns in the letter sent to you by Ms. Marion Roberts, Director of Child Protection Services, on September 9, 2002”.

13On November 20, 2003 the Applicant requested a review of his complaint under section 68(3) of the former Act. On February 10, 2004, the Minister of Children’s Services appointed Laurent Couture to conduct a Director’s Review.

14Mr. Couture reviewed the file, interviewed the Applicant and interviewed Respondent staff. In his March 29, 2004 report, Mr. Couture summarized the Applicant’s complaints as follows:

Failure of the Society to protect his daughter by refusing to follow-up on the removal of the child from the home by the mother. The follow-up had been identified by the Applicant as a commitment by the Society’s emergency worker during the night of October 22, 1995.

Getting a Family Court Clinic (FCC) assessment took 7 years when it had been ordered in 1995 by a judge.

15Mr. Couture concluded:

… the Society did not act improperly in their effort to protect the children in October 1995 nor did they fail to meet their obligations of child protection.

16In January 2016, the Applicant filed a Statement of Claim against the Respondent in the Ontario Superior Court of Justice. His action was dismissed in October 2016 because the limitation period for such an action had expired in 2001.

17The Applicant filed the Application with the CFSRB on July 15, 2019.

THE PARTIES’ POSITIONS

The Applicant’s Submissions

18The Applicant’s submissions focus mainly on the impact on his children of the Respondent’s (in)actions following the October 22, 1995 incident. He also refers to the Criminal Code and the Convention on the Rights of the Child.

19The following paragraphs in the Applicant’s submissions are the most relevant to the question before me:

14. This tribunal is legislated by the Child Youth and Family Services Act and it is an important and necessary step in our justice system.

15. This tribunal is legislated to address complaints about services sought or received from CAS and nowhere in the act is there any limitations on the tribunal to provide this service.

16. A matter of fact the law is clear that child abuse crimes have no limitation periods for investigations and findings, even against CAS.

17. To not make a finding after the hearing would place this tribunal in a position of covering up this child abuse and a failure of our justice system.

The Respondent’s Submissions

20The Respondent argues the Applicant’s complaint to the Respondent and to the Ministry “was on the same issue as the current complaint filed with the CFSRB”. It submits the CFSRB cannot review the Application because it has already been reviewed through the Respondent’s internal complaint review procedure and through the Director’s Review.

21The Respondent relies on KR v. The CAS of Hamilton (CFSA s.68), 2007 CFSRB 5, a decision in which the CFSRB found its “jurisdiction to deal with complaints made before the re-enactment of s.68 of the Act is limited by subsection 68(13).” It also relies on DD v. CCAS of Toronto (CFSA s.68), 2007 CFSRB 8, a decision in which the CFSRB found it did not have jurisdiction “to review complaints brought under the Society’s previous internal complaint procedure prior to November 30, 2006 nor does it have jurisdiction to review how the Society dealt with those complaints under the previous legislation.”

analysis

22The Applicant is correct that the current Act does not contain a time limit for filing applications: ST v. Children’s Aid Society of Toronto, 2013 CFSRB 52. That, however, does not mean all applications about historical events fall within the CFSRB’s jurisdiction.

23The cases on which the Respondent relies are representative of the CFSRB’s jurisprudence on this issue. The CFSRB has only found jurisdiction to review concerns about events prior to November 30, 2006 when a society’s internal complaint review procedure had not been engaged: NS v. CAS of Toronto, 2010 CFSRB 6, RT v. Children’s Aid Society of Brant, 2012 CFSRB 54.

24The 2006 amendment which created the option of requesting a review by the CFSRB included a transitional provision. Subsection 68(13) of the former Act states:

This section as it read immediately before the day this subsection came into force continues to apply in respect of complaints made to a society before that day and of any reviews requested of the Director before that day.

25As a result of this transitional provision, the key question is not when the events complained about took place but instead whether an applicant engaged a society’s internal complaint review procedure prior to November 30, 2006. If they did, the procedure in place prior to November 30, 2006 applied. Under that procedure, there was no ability to apply to the CFSRB. If they did not, the new procedure (which included the option to apply to the CFSRB) governed. Subsection 68(13) thus bars CFSRB review of a complaint which has already been dealt with through a society’s internal complaint review procedure before November 30, 2006.

26In the case before me, the Applicant made multiple complaints to the Respondent, up to and including the Respondent’s Board of Directors. The Respondent’s Executive Director and Director of Child Protection Services both responded to the Applicant’s complaints. The Applicant was not satisfied with these responses. As a result, he requested and obtained a further review by a person appointed by the Ministry. That Director’s Review included a file review and interviews with Respondent staff and the Applicant. It resulted in an eight page report, dated March 29, 2004, which made findings about the Respondent’s actions with respect to the October 22, 1995 incident.

27The Applicant engaged and exhausted the complaint procedures available to him before November 30, 2006. As a result, subsection 68(13) of the former Act bars the CFSRB from reviewing the Application.

28For these reasons, I conclude the CFSRB lacks jurisdiction to review the Application.

order

29The Application is dismissed.

confidentiality order

30Pursuant 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.

Dated at Toronto, June 03, 2020.

Catherine Bickley

Catherine Bickley Vice-Chair

appendix a

Child and Family Services Act, R.S.O. 1990, c. C.11, s. 68 (as of November 29, 2006)

Society review procedure

68(1) A society shall establish a written review procedure, which shall be approved by a Director, for hearing and dealing with complaints by any person regarding services sought or received from the society, and shall make the review procedure available to any person on request. Idem

(2) A review procedure established under subsection (1), shall include an opportunity for the person making the complaint to be heard by the society’s board of directors.

Further review by Director

(3) A person who makes a complaint and is not satisfied with the response of the society’s board of directors may have the matter reviewed by a Director.

Child and Family Services Act, R.S.O. 1990, c. C.11, s. 68 (as of November 30, 2006)

68

Application for review by Board

(5) If a complaint relates to one of the following matters, the complainant may apply to the Board in accordance with the regulations for a review of the decision made by the society upon completion of the complaint review procedure:

1. An alleged inaccuracy in the society’s files or records regarding the complainant.
2. A matter described in subsection 68.1 (4).
3. Any other prescribed matter. 2006, c. 5, s. 26.

Transitional

(13) This section as it read immediately before the day this subsection came into force continues to apply in respect of complaints made to a society before that day and of any reviews requested of the Director before that day. 2006, c. 5, s. 26.

Complaint to Board

68.1 (1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may,

(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section; or (b) where the person first makes the complaint to the society under section 68, submit the complaint to the Board before the society’s complaint review procedure is completed. 2006, c. 5, s. 26.

Matters for Board review

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

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68 (1) as required under subsection 68 (2).
2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.
3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.
4. Allegations that the society has failed to comply with clause 2 (2) (a).
5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
6. Such other matters as may be prescribed. 2006, c. 5, s. 26.