SB v. Windsor-Essex Children’s Aid Society, 2020 CFSRB 59

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SB Applicant

-and-

Windsor-Essex Children’s Aid Society Respondent

DECISION

Adjudicator: Daniel McSweeney Date: June 23, 2020 Citation: 2020 CFSRB 59 Indexed As: SB v Windsor-Essex Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

SB, Applicant Self-represented

Windsor-Essex Children’s Aid Society, Respondent Karen Robertson, Counsel

INTRODUCTION/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 Application was found eligible to proceed under s. 120(4) 4 and 120(4) 5 of the Act: The Respondent is alleged to have failed to provide the Applicant with an opportunity to be heard and reasons for decisions that affected his interests.

3The Applicant is the father of TB (the “Child”). The Application outlined the following:

1. Concerns regarding alleged physical, emotional and mental abuse by the Child’s mother towards the Child e.g. verbal abuse, allegations of Munchausen’s by Proxy, hitting the Child, suicide attempts by the Child’s mother;
2. Concerns that the Respondent has failed to consider the Applicant’s concerns related to the mental health of and alleged drug use by the Child’s mother;
3. Concerns with the Respondent’s handling of false accusations reported against the Applicant e.g. alleged drug use;
4. Failure of the Respondent to follow-up on the Applicant’s internal complaint;
5. Respondent staff refusing to speak with the Applicant e.g. ending his calls abruptly; and allegations that the Applicant’s behaviour toward Respondent staff was abusive;
6. Failure by the Respondent to provide reasons for their decisions regarding the Applicant’s concerns/complaints about alleged abuse of his daughter;
7. Failure by the Respondent to place the Child with her father; and
8. Allegations that Respondent staff assisted the Child’s mother with an emergency court order.

4In its Summary Reply, the Respondent argued that it has adequately assessed the child protection concerns alleged by the Applicant and continues to work with the family through the court process. The Applicant’s child protection concerns were before the court on June 9, 2020. The Respondent argued the following in respect of the Applicant’s concerns in the complaint:

• In response to the Applicant’s allegations that the Child’s mother has Munchausen by Proxy Syndrome, a review of the Child’s medical records by a physician confirmed that there were no protection concerns with the mother’s care of the Child or with her interactions with the Child when she was at the Pickwick Clinic;
• The information provided to the Applicant by Ms. Garlick (alleged abuse of the Child by her mother) was from approximately one year ago when Ms. Garlick had contact with the Child’s mother; and
• Both the Child’s mother and the Applicant’s mental health status require assessment;
• Both parents continue to engage in conflict regarding issues of care and access to the Child.

5The Respondent also argued that the Applicant’s ICRP complaint was ineligible for review as its contents dealt with issues that are or were before the court. In addition, the ICRP process has been put on hold because of the Applicant’s complaint to the CFSRB.

6In a Case Management Direction dated May 21, 2020, the parties were directed to make written submissions on the CFSRB’s jurisdiction to hear the Application. Parties were directed to consider and or refer to the Ontario Court of Appeal decision Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441.

7The Applicant’s submissions and various documents sent to the CFSRB after the request for submissions did not address the issue of jurisdiction and s. 120(8). In essence, the submissions reiterated the Applicant’s concerns. The Applicant submitted that he has asked the CFSRB to investigate the decisions made by the Respondent especially as they related to: investigative procedures, how the Respondent assessed evidence of alleged abuse, the Respondent’s findings related to the Child’s mother and investigations; and the Society’s explanations related to its decision-making related to allegations of abuse by the Child’s mother. The Applicant alleged that the Respondent withheld records from him and has not transferred fully documents from the Matrix System to CPIN; and has failed to communicate with him.

8The Applicant also alleged that Respondent staff have not listened to his concerns about the Child’s safety while with her mother. The Applicant alleged that the Respondent submitted false reports about him to the Court.

9The Applicant’s submissions mentioned concerns with regard to the transfer of his file from one worker to another. These concerns form the basis for another complaint to the CFSRB and will not be addressed in this decision.

10The Respondent submitted that the CFSRB does not have jurisdiction to review the complaint as the issues in the complaint are currently before the Court or have been before the Court. These issues include: The Child’s mother unnecessarily seeking medical treatment for the Child; unaddressed concerns identified by Ms. Garlick; and allegations regarding the Child’s mother’s mental health and parenting capacity.

THE LAW

11Section 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.

12Section 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

13The 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).

ANALYSIS

14In analyzing the claim, I focused on whether the CFSRB had jurisdiction to review the complaint based on the exclusion of s. 120(8). Each of the Applicant’s concerns will be addressed.

1. Concerns regarding alleged physical, emotional and mental abuse by the Child’s mother towards the Child e.g. verbal abuse, allegations of Munchausen’s by Proxy, hitting the Child, suicide attempts by the Child’s mother

15The evidence presented by the Respondent is replete with examples of the Applicant raising allegations of physical, emotional, and mental abuse by the Child’s mother at court proceedings between 2018 and late March of 2020. For example, the affidavit of Baily Dekold dated August 21, 2018 cites the Applicant’s concerns with his daughter being left alone, the mental health and suicide attempts by the Child’s mother, and the Child’s health. The Applicant’s own affidavit to the Court dated October 15, 2018 speaks of his concerns with his Child’s asthma, her health, and the mental health status of the Child’s mother. The Applicant also raised concerns with the supervision of the Child; the Child’s health, and allegations of sexual abuse of the Child were raised in the Applicant’s affidavit submitted to Court in November of 2019. Finally, the Applicant addressed his concerns regarding abuse, neglect, and the Child’s health concerns in a March 2020 motion to the Court.

16A review of the totality of the evidence indicates that the Applicant’s concerns regarding alleged abuse by the Child’s mother was consistently raised in various Court proceedings between 2018 and June of 2020. As such, I find that the CFSRB does not have jurisdiction to address these issues.

2. Concerns that the Respondent has failed to consider the Applicant’s concerns related to the mental health of and alleged drug use by the Child’s mother.

17As noted above, the Applicant raised concerns with the mental health of his Child’s mother at Court on several occasions. In addition, the issue of the mother’s drug use was raised in Bailey Dekold’s affidavit of August 21, 2018; in the Applicant’s own affidavit of November 18, 2019, and in the Applicant’s response to Supervision Term #5 in attached to his affidavit of November 18, 2019.

18I therefore find that the issue of the mental health and drug use of the Child’s mother has been before the Court and the CFSRB does not have jurisdiction to review this matter.

3. Concerns with the Respondent’s handling of false accusations reported against the Applicant e.g. alleged drug use

19The drug use of both parents was addressed in the affidavit of Bailey Dekold sworn on August 21, 2018.

20The Applicant had multiple opportunities to raise any concerns with false allegations by Respondent staff at the various Court proceedings. The Court is the most appropriate forum for raising these types of concerns.

21As such, I find that the Applicant’s alleged drug use and any false allegations about the Applicant were before the Court and are therefore exempted from review by the CFSRB.

4. Failure of the Respondent to follow-up on the Applicant’s internal complaint

22The Applicant’s ICRP Complaint raised the following issues:

• Respondent staff failed to act after major concerns were identified regarding the mother of the Child;
• The Applicant was concerned with the mother overmedicating the Child and other concerns related to the Child’s health e.g. COVID;
• The Applicant’s concerns with staff presenting untruthful documents at Court to support the Child’s mother;
• The Respondent’s refusal to provide reasons for decisions they have made regarding the protection of his Child;
• Concerns that 2 Respondent staff have forged names to obtain information about the Applicant;
• Concerns that the Applicant was not provided with reasons for the Respondent’s child protection findings; and
• The Respondent’s refusal to return the Applicant’s calls or reply to e-mails.

23As noted above, I find that the Applicant has had the opportunity to raise all of the child protection concerns on multiple occasions before the Court. The Respondent has provided reasons for their decisions and recommendations to the Court through affidavits entered by Respondent staff into the record. The Applicant had the opportunity to raise any concerns with the veracity of Respondent staff documents at Court as well as to challenge the reasons for the Respondent’s recommendations regarding the health and safety of the Child.

24The Respondent’s decision not to return calls and texts by the Applicant were addressed in the Affidavit submitted to the Court by Bailey Dekold dated August 21, 2018.

25The Respondent submitted evidence in the form of a letter dated April 8, 2020 which indicated that the Applicant’s ICRP complaint was ineligible as the complaint’s contents were before the Court. In addition, a letter by Kim Brisebois (May 12, 2020) indicated that the ICRP process has been placed on hold because of the CFSRB complaint.

26Section 119(11) states:

“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”

27As noted above, I have found that the issues included in the Applicant’s ICRP complaint are issues that have been decided by the Court or were placed before the Court. As such, the Respondent is prohibited from reviewing the complaint. Given this, I do not have to comment on the issue of staying the ICRP proceedings under section 120(2) given my findings under s. 119(11), although I note that the Respondent provided two explanations to the Applicant concerning why it was not moving forward with his ICRP complaint.

5. Respondent staff refusing to speak with the Applicant e.g. hanging up; and allegations that the Applicant’s behaviour toward Respondent staff was abusive

28The Applicant’s inability to control his temper, his refusal to work cooperatively with the Respondent, his accusations and threats to Respondent staff were placed before the Court in the affidavit of Bailey Dekold sworn on August 21, 2018. The Applicant’s affidavit of October 18, 2018 addressed the Respondent’s refusal to return his calls. Finally, the affidavit of Bailey Dekold dated October 17, 2018 addressed the reasons for the Respondent’s refusal to answer the Applicant’s texts.

29As such, I find that the Respondent’s response to the Applicant’s alleged behavioural issues were before the Court. The CFSRB does not have the jurisdiction to address this issue.

6. Failure by the Respondent to provide reasons for their decisions regarding the Applicant’s concerns/complaints about alleged abuse of his daughter

30The reasons for the Respondent’s child protection findings and recommendations regarding custody and access are included in court records (Affidavit of Bailey Dekold dated August 21, 2018; Reasons for Decision of Justice D.W. Philips dated October 29, 2018). The Respondent has had to defend its position and decisions at several Court proceedings including proceedings in June of 2020.

31I have found that the Respondent has provided the Applicant with reasons to support its activities, findings, and legal positions through various documents presented at Court over the past 2 years. As such, I find that the CFSRB does not have the jurisdiction to address this issue as it has been before the Court.

7. Failure of the Respondent to place the child with her father

32As noted above, the Respondent has presented documents to the Court to support its recommendations regarding custody, access, and supervision of the Child. This includes Bailey Dekold’s affidavit of August 21, 2018. The decision not to place the Child with the Applicant was addressed in the Endorsement of Madam Justice L.S. Ross in her decision of December 5, 2019. The Applicant’s affidavit of March 2020 also addressed the issue of the Respondent’s refusal to place the Child with him.

33The issue of the most appropriate placement for the Child has been before the Courts. As such, the CFSRB does not have the jurisdiction to review this issue.

8. Allegations that the Respondent staff assisted the Child’s mother with an emergency court order

34The Affidavit of Bailey Dekold dated August 21, 2018 addressed the need for an emergency motion related to the custody of the Child. While it did not address Ms. Dekold’s role in facilitating the motion, it provided the background and rationale for the Respondent’s position in relation to the motion. The Applicant’s affidavit of November 18, 2019 speaks to the issue of Ms. Dekold’s alleged misleading of the Court and providing the Court with false safety plans.

35The Applicant had the opportunity to raise his concerns with the Court regarding Ms. Dekold’s behaviour as well as any concerns related to the Respondent’s actions in relation to child protection, custody, and access issues. As such, the CFSRB does not have jurisdiction to review these issues.

SUMMARY

36Based on the copious evidence presented by the Respondent in the documents appended to its submissions, I find that all 8 issues raised by the Applicant were presented and addressed by the Court. As such, the CFSRB does not have jurisdiction to address these issues as per section 120(8) of the Act.

ORDER

37The Applicant’s complaint is dismissed in its entirety.

CONFIDENTIALITY ORDER

38Pursuant 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.