SB v. Windsor-Essex Children’s Aid Society, 2020 CFSRB 93

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SB Applicant

-and-

Windsor-Essex Children’s Aid Society Respondent

DECISION

Adjudicator: Catherine Bickley Date: October 27, 2020 Citation: 2020 CFSRB 93 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 M. Robertson, Counsel

Introduction

1This is an Application filed 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)1, 120(4)4 and 120(4)5 of the Act.

3Following a July 2020 Pre-Hearing, the parties were directed to make submissions on a number of issues including whether the CFSRB had the jurisdiction to review the Application and whether any of the issues in the current Application had been disposed of by the CFSRB’s decision on a previous Application filed by the Applicant.

4This decision explains why the CFSRB is dismissing the Application.

the law

5Section 120(4) of the Act states:

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 section 119(1) as required under subsection 119(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 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.

Section 120(8)(a) of the Act states:

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.

background

The Previous Application

6In May 2020, the Applicant filed an Application, CA20-0061 (“the First Application”) which the CFSRB dismissed after considering submissions on jurisdiction from the parties: SB v. Windsor-Essex Children’s Aid Society, 2020 CFSRB 59 (“the June Decision”). The CFSRB found it was barred from reviewing the issues in the First Application because those issues had been decided by the court or were before the court.

7The June Decision considered the following concerns of the Applicant:

1. Concerns regarding alleged physical, emotional and mental abuse by the Child’s mother towards the Child, e.g., verbal abuse, allegations of Munchausen by Proxy, hitting the child and 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., hanging up; 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 of the Respondent to place the Child with her father.
8. Allegations that the Respondent staff assisted the Child’s mother with an emergency court order.

8The June Decision did not address the Applicant’s concerns about the transfer of his file from one Respondent worker to another, noting that those concerns were the basis of a separate complaint to the CFSRB (para 9 of the June Decision). The reference to “a separate complaint” is a reference to the current Application.

The July 2020 Pre-Hearing

9At a July 7, 2020 Pre-Hearing, the issues in the current Application were identified as follows:

• The Applicant was not provided with an explanation for why his file was transferred from [the former worker] to a different worker.
• The Applicant expressed concern that his new worker … does not listen to his child protection concerns and has ended his calls.
• The Applicant alleges that [the current worker] and [the former worker] have made falsified statements in case notes and have produced reports with false information in them for Court.
• The Applicant is concerned with alleged missing files associated with the 2 record keeping systems (Matrix and CPIN) and the impact of the change in file systems on the documents presented by the Respondent in Court.
• The Applicant has not received an explanation from the Respondent as to why it keeps allowing the Applicant’s child to remain in her mother’s custody and to face alleged abuse.
• The Respondent is concerned that his internal complaints (ICRPs) have not been processed or addressed by the Respondent.

10The member who conducted the July 2020 Pre-Hearing directed the parties as follows:

• The parties will provide submissions on whether any of the issues in the current Application overlap with or have been disposed of based on the June 22, 2020 decision in CA20-0061.
• The parties will provide submissions on whether the CFSRB has jurisdiction to review aspects of the current complaint based on the section 120(8) of the CYFSA which prohibits the CFSRB from reviewing issues that are before the court or have been before the court. CFRSB Rule 21.2 states that: “Where the society takes the position that the CFRSB cannot conduct a review because the subject of the application is: an issue that has been decided by the Court or is before the Court, the society must provide submissions in support of the position and attach all relevant documents and any Court orders to the response”.
• The parties will provide submissions on whether the Respondent is prohibited from addressing ICRP complaints that relate to issues that were before the court as per section 119(11) (a).
• The Applicant is directed to provide copies of his ICRP applications to the Respondent to the CFSRB as well as the Respondent.
• The parties will provide submissions on whether the CFSRB has jurisdiction to address issues related to the content and accuracy of Respondent records (e.g. Issues 3,4) based on Part X of the Act and whether a review of these issues is in the jurisdiction of the IPC.
• Parties will be asked to provide submissions on the format of the hearing, e.g. written hearing, hearing by teleconference. The parties are asked to provide their submissions on the format of the hearing based on section 8.1 of the CFSRB Rules at: http://www.sjto.gov.on.ca/cfsrb/rules-of-procedure.

11The only material submitted by the Applicant was a letter from a friend outlining her concerns for the wellbeing of the Applicant’s daughter and the behaviour of the child’s mother. The Applicant did not provide copies of his ICRP complaints despite being directed to do so.

12The Respondent made written submissions and provided a number of documents from the ongoing proceedings before the Ontario Court of Justice (“OCJ”).

analysis

13Having reviewed the Application, the Response and the additional materials submitted by the parties, I conclude that all issues in the current Application except the file transfer issue were considered and dismissed in the June Decision. Accordingly, those portions of the current Application must be dismissed.

14As noted above, the Applicant’s concerns about the transfer of his file from one worker to another were not addressed in the June Decision. This concern was identified in the July 2020 Pre-Hearing Report as follows:

The Applicant was not provided with an explanation for why his file was transferred from [the former worker] to a different worker.

15In support of its position that the file transfer issue was recently before the OCJ, the Respondent relies on affidavits from the Applicant, the Applicant’s former worker and the Applicant’s current worker.

16The Applicant’s June 22, 2020 affidavit states the former worker was told to transfer the file “because I had started a CFSRB [application] and have been deemed eligible”.

17In his June 23, 2020 affidavit, the former worker denies being told to transfer the file due to the CFSRB proceedings. Instead, he states, “[t]he file was transferred due to the inappropriate accusations made by and behaviours of [the Applicant] against me”.

18The affidavit of the Applicant’s current worker describes difficult behaviour by the Applicant but does not directly connect that behaviour to the file transfer.

19I conclude that the issue of the file transfer was before the OCJ as both the Applicant and the former worker address the issue in their affidavits. As a result, the CFSRB is barred by section 120(8)(a) of the Act from reviewing this portion of the Application.

order

20The Application is dismissed.

confidentiality order

21Pursuant 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.