JN v Children’s Aid Society of Ottawa, 2020 CFSRB 97

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JN

Applicant

-and-

Children’s Aid Society of Ottawa

Respondent

DECISION

Adjudicator: Daniel McSweeney Date: November 10, 2020 Citation: 2020 CFSRB 97 Indexed As: JN v Children’s Aid Society of Ottawa (CYFSA s.120)

WRITTEN SUBMISSIONS

JN, Applicant Self-Represented

Children’s Aid Society of Ottawa, Respondent Deborah H. Souder, 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 3 sons (the “Children”), and his Application also listed 2 other children children who received daycare services from the Applicant’s former spouse. The Application outlined the following issues:

1. Concerns that the Respondent failed to hear the Applicant’s concerns about alleged abuse/physical harm of children in the Applicant’s former wife’s daycare; and concerns of the fitness of the former wife to operate a daycare;

2. Concerns that the Respondent failed to hear the Applicant’s concerns regarding the abuse of his children and neglect by his former wife even after reports to police alleging physical abuse;

3. Concerns that the Respondent failed to consider the assaults of the Applicant’s ex-wife in relation to custody and access;

4. Concerns regarding forged documents presented to the Court on July 15, 2020 which involved the Applicant’s ex-wife, her doctor and Respondent staff;

5. Concerns that Respondent staff were looking to find fault with the Applicant’s behaviour;

6. Concerns that the worker assigned to the Applicant failed to provide the Applicant with reasons for decisions she made regarding the Applicant’s children;

7. Concerns the worker alienated one of the children in his home; and

8. Concerns that the worker apprehended the children as a reprisal for the Applicant’s criticism of the Respondent.

4In a Case Management Direction (CMD) dated September 15, 2020, the parties were directed by the CFSRB to provide written submissions on the CFSRB’s jurisdiction to hear the complaint. They were asked to refer to the Ontario Court of Appeal decision in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441. The Respondent was asked to consider that Rule 21.2 of the CFSRB’s Rules of Procedure which requires a children’s aid society relying on section 120(8)(a) of the Act to provide “all relevant documents and any Court orders”.

5In its Reply to the CMD, the Respondent indicated that the CFSRB did not have jurisdiction to hear the matter as it is presently before the Court by way of a Protection Application. An amended Protection Application has been served seeking placement of the children with the mother with access to the father at the discretion of the Respondent. The mother of the children has filed an Answer and Plan of Care related to the original Protection Application. The Applicant has filed an Answer to the original Protection Application seeking custody of the 3 children.

6The mother was incarcerated in 2020 based on convictions for assaulting children in her home daycare between 2012 and 2015 (the 2 children named in the Application). She has been released on mandatory supervision.

7The Applicant is currently facing criminal charges for obstruction of justice (withholding video tapes showing the commission of offences by the mother; assault on the mother; and assault on one of the children). The trial on the obstruction charge occurred the week of September 14, 2020. In response to the Applicant’s assertion that he had been acquitted of one of the criminal charges against him, the Respondent submitted DRAFT Reasons for Decision by The Honourable Madam Justice Parfett released on October 8, 2020 which found the Applicant guilty on 1 count of obstruction of justice and 2 counts of obstruction of police. The Respondent indicated that the Reasons did not address the Applicant’s charges for assault of his son or ex-spouse.

8It is unknown when the assault charges will be set for trial.

9The Children are in the temporary care of a relative, and the parents are subject to supervised access pursuant to a Temporary Order granted November 29, 2019. The Applicant is not exercising access to one child (allegedly assaulted by the Applicant); and the other two children have access with their father.

10The Respondent argued that the Court will address the following issues:

• Was there alienation of the children since 2011 including by the worker;

• Whether the Respondent took appropriate steps to protect the children;

• Whether the apprehension was appropriate or malicious;

• Whether the Respondent provided necessary services to the children and family to assist them in managing protection concerns;

• Credibility of the parties; and

• What are the best interests of the children?

11The Respondent requested that the Application be dismissed pursuant to section 120(8) of the Act.

12The Applicant submitted that the CFSRB has jurisdiction to review the complaint as the 3 parts of his complaint are not covered by court proceedings. The Court is dealing with access and custody. The Applicant also submitted that he has the right to raise issues of the 2 children as the assaults against them happened in his home in front of his children which has affected his children.

13The Applicant appended 8 exhibits to his submissions, the majority of which dealt with the crimes of his ex-wife, the psychological and educational needs of one of the children, and an e-mail commenting on challenges interviewing the children in the presence of their mother.

THE LAW

14Section 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

15The 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).

16Section 2(2) of the Act defines parent:

“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 unavailable to unable to act, as the contest requires.”

17With respect to the duties of service providers in respect of children and youth, section 15(2) of the Act states that:

“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.”

18Section 120 (1) of the Act indicates that a person has a right to complain to a Society or the Board in respect of a service sought or received from a society in relation to the following matters in subsection 120 (4):

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 119(1) as required under subsection 119(2).

2. Allegations that the society has failed to respond to the complaint’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 subsection 15(2).

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.

ANALYSIS

19In analyzing the claim, I focused on two issues: a) whether the CFSRB has jurisdiction to review a complaint about children who are not the Applicant’s children; b) whether the issues/concerns identified in the Application had been or are currently before the Court.

Jurisdiction to hear complaints related to daycare children

20The Applicant submitted concerns with the Respondent’s response to his complaints related to the mother’s abuse of 2 children from her daycare. The Applicant indicated that the CFSRB had jurisdiction to review this aspect of the complaint given that the assaults happened in his home in front of his children and had an impact on his children.

21Firstly, the Applicant is not the parent of the 2 daycare children as per section 2(2) of the Act. Therefore, the Respondent is not required to ensure that his concerns about the daycare children are heard when decisions affecting their interests were made. Secondly, the Applicant, as a referent concerning the daycare children, is not a recipient of service and therefore is not subject to sections 120 (4) and 120(5) of the Act.

22I considered the Applicant’s argument that he had a right to complain given that the abuse of the daycare children had affected his children. While there may be some validity to this argument, this issue was not raised in the Applicant’s complaint, and therefore I find that I do not have jurisdiction to review this aspect of the complaint. The Applicant can also raise his concerns regarding the impact of the abuse of the daycare children on his children in the Family Court Proceedings as they deal with the ability of the mother to parent and the Respondent’s decision to argue that the mother should have custody of the children.

23For these reasons, I find that the CFSRB does not have jurisdiction to address the aspects of the complaint which deal with the daycare children.

Issues before the Court

24The Applicant argued that the issues/concerns he raised about his children were not before the Court. The Respondent submitted that all of the Applicant’s issues were before the Court related to an initial Protection Application, and amended Protection Application, and in relation to criminal charges of assault related to alleged assaults against one of the Applicant’s sons and his ex-wife.

25The Applicant has responded to the initial Protection Application and may have an opportunity to respond to the Amended Application. During the Family Court proceedings, the Applicant will have an opportunity to respond to adduce any evidence he wishes in relation to the allegations of harm against the children; access; custody; and the best interests of his children. This includes, challenging the actions, decisions, and evidence presented by the Respondent in support of their Applications.

26The Applicant included allegations of forged documents issued to the Court in his complaint. Given that the documents were allegedly submitted to the Court, I find that the Court is the most appropriate venue to consider the Applicant’s arguments on this issue.

27In his submissions, the Applicant has not provided me with a reasonable argument that the issues in his Application are separate and distinct from the issues that are and will be presented before the Court in the various proceedings.

28As such, I find that the CFSRB does not have jurisdiction to review the complaint as the issues in the complaint are outside the CFSRB’s jurisdiction as per sections 120(4), 120(5), and 120(8) of the Act.

ORDER

29The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

30Pursuant 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.