QF v. Ogwadeni:deo, 2020 CFSRB 83

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

QF

Applicant

-and-

Ogwadeni:deo

Respondent

DECISION

Adjudicator: Daniel McSweeney Date: September 08, 2020 Citation: 2020 CFSRB 83 Indexed As: QF v Ogwadeni:deo (CYFSA s.120)

WRITTEN SUBMISSIONS

Ogwadeni:deo, Respondent

Maureen Bulbrook, 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 sections 120(4)4 and 120(4)5 of the Act: the Applicant was not given the opportunity to be heard and represented when decisions affecting his interests were made, or a chance to be heard when he raised concerns about the services he is receiving; the Respondent is alleged to have failed to provide the Applicant with reasons for decisions that affected his interests.

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

1. Concerns that the Respondent failed to consider the Applicant’s concerns regarding the health and safety of the Child associated with her mother’s drug use both before and after the Child was born;

2. Concerns that the Applicant was tricked by Respondent staff into signing a 3-month temporary care agreement placing the Child in foster care;

3. Concerns that the Child’s mother’s visits with the Child were not supervised and concerns with the quality of supervisors;

4. Concerns that the Respondent has closed the Child’s mother’s file despite ongoing concerns related to the mental health and addictions issues of the Child’s mother; and,

5. Concerns that the Applicant was not served with notice of an access hearing.

4In its Summary Reply, the Respondent indicated that the Applicant is currently involved in custody and access proceedings before the Court and the Applicant is represented by counsel in these proceedings. The Court has granted the Applicant with unsupervised access. The Applicant’s dissatisfaction with the Court order and the process do not relate to the Respondent.

5The Respondent also argued that the Applicant’s concerns regarding the Child’s mother’s behaviour in the pre-natal and post-natal period, the apprehension of the Child, and the temporary care agreement related to Brant Family and Children’s Services and not to the Respondent.

6The Applicant had an opportunity to share his concerns with the Child’s mother with the Respondent on February 3, 2020. This meeting resulted in a temporary suspension of the Child’s mother’s access pending an investigation. Subsequently, the Respondent approved an access supervisor. The Respondent verified the protection concerns against the Child’s mother but found that the concerns were mitigated by a change in her behaviour and her use of community supports. The file was closed.

7In a Case Management Direction (CMD) dated March 27, 2020, the parties were directed by the CFSRB to make written submissions on the CFSRB’s jurisdiction to hear the complaint. The parties were asked to refer to the Ontario Court of Appeal decision in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441.

8On April 6, 2020, the Respondent requested disclosure from the Applicant of documents from the Children’s Law Reform Act (CLRA) proceedings between the Applicant and his former partner. The Applicant responded that he was experiencing difficulty communicating with his counsel. The Applicant was given until July 13, 2020 to disclose the documents, and both parties were given until July 20, 2020 to provide submissions on the issue of jurisdiction.

9The Respondent submitted that the Applicant has brought forward a notice of motion with the Court dealing which dealt with all the issues raised in his CFSRB complaint.

10The Applicant did not provide submissions on the issue of the CFSRB’s jurisdiction to review his Application.

THE LAW

11Section 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

12The 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).

13Section 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.

14The Act defines “service” as follows:

“service” includes,

a) a service for a child with a developmental or physical disability or the child’s family

b) a mental health service for a child or the child’s family,

c) a service related to residential care for a child,

d) a service for a child who is or may be in need of protection or the child’s family,

e) a service related to adoption for a child, the child’s family or others,

f) counselling for a child or the child’s family

g) a service for a child or the child’s family that is in the nature of support or prevention and that is provided in the community,

h) a service or program for or on behalf of a young person for the purposes of the Youth Criminal Justice Act (Canada) or the Provincial Offences Act, or

i) a prescribed service; (“service”).

ANALYSIS

15In analyzing the claim, I focused on whether the CFSRB has jurisdiction to address the Applicant’s Complaints as they had been before the Court. In addition, I considered whether informing the Applicant of a Court hearing was considered a service under section 120(1) of the Act.

16Along with its submissions, the Respondent provided many documents (applications, affidavits, notices of motion, supporting documents) provided to the Court since 2019.

17The Child’s mother’s application, affidavit and supporting documents presented to the Court dated September 19, 2019 addressed the following issues: access; custody; addictions and mental health of both parents; the apprehension of the Child by Brant Child and Family Services; the Temporary Care Agreement; the transfer of the file to Ogwadeni:deo; the Child’s mother’s relapses and her use of community supports; incidents of domestic violence between the Applicant and the Child’s mother; inappropriate communications between the Applicant and the Child’s mother; the Applicant’s concerns regarding Ogwadeni:deo’s verification and access decisions; and concerns with access exchanges. The Applicant provided his response to the Child’s mother’s application to the Court dated October 17, 2019 which addressed the same list of issues.

18The Applicant’s affidavit to the Court dated October 17, 2019 had appended to it notes from a Rapid Response Meeting dated January 9, 2019 between the Applicant; the Child’s mother and Brant Child and Family Services staff. This meeting addressed concerns with the Child’s parents drug use; the need for a Temporary Care Agreement; access and supervision requirements; supports for the Child’s mother; and strengths and challenges of both parents. While the Respondent cannot be held accountable for the actions of another child protection agency, the affidavit is evidence that the Applicant’s concerns regarding the apprehension of the child, the Temporary Care Agreement, and Brant Family and Child Services’ access and custody positions were before the Court.

19The Applicant’s affidavit accompanying a motion to the Court dated February 24, 2020 addressed many of the same issues which were presented to the Court outlined in paragraph 17 above including the Applicant’s concerns with the Child’s mother’s drug use and mental health; with access and hand-over issues; the Applicant’s child protection reports to the Respondent; the Respondent’s investigation and decisions regarding custody and access; and the Applicant’s ongoing concerns regarding the safety of his daughter. This affidavit was accompanied by several letters including the Respondent’s investigation and verification decisions related to concerns with the Child’s mother’s parenting.

20An affidavit from the Child’s Mother dated February 24, 2020 speaks of the Applicant’s refusal to allow access to the Child on 4 occasions in February 2020; the Mother’s explanation for a cut on her arm; her ongoing supports; and the Respondent’s findings regarding unsupervised access. This affidavit was accompanied by Justice Hilliard’s Reasons dated December 16, 2019 related to custody and access.

21Based on a review of the Court documents submitted by the Respondent, I find that issues/concerns 1 – 4 raised by the Applicant have been placed squarely before the Court on multiple occasions since 2019. The Applicant was represented by counsel throughout the proceedings and therefore had an opportunity to present his concerns to the Court related to the health and safety of the Child; and the Respondent’s verification decision and actions related to the Child’s mother. As such, the CFSRB does not have jurisdiction to review issues/concerns 1 – 4 based on the provisions of section 120(8) of the Act.

22I also find that the Respondent had no involvement or responsibility to provide the Applicant with notice regarding Court hearings. As such, this issue does not relate to a service received by the Respondent and therefore does not fall within section 120 (1) of the Act.

SUMMARY

23I find that issues/concerns 1 – 4 were issues that were addressed by the Court. As such, the CFSRB does not have jurisdiction to review these issues as per section 120(8) of the Act.

24Issue 5 did not relate to a service provided to the Applicant by the Respondent and therefore it is exempted from review based on section 120(1) of the Act.

ORDER

25The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

26Pursuant to Rules 9.3 and 9.4 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.