CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
RK
Applicant
-and-
Simcoe Muskoka Child, Youth and Family Services
Respondent
DECISION
Adjudicator: Daniel McSweeney
Indexed As: RK v Simcoe Muskoka Child, Youth and Family Services (CYFSA s.120)
WRITTEN SUBMISSIONS
RK, Applicant
Self-Represented
Simcoe Muskoka Child, Youth and Family Services, Respondent
Karen O’Keefe, 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 allegation is that 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 two sons (the “Children”). The Application alleged the following issues/concerns in his complaint:
The Applicant was concerned that the Respondent did not hear his concerns regarding the health and safety of the Children in their mother’s home especially in relation to the accessibility to a shot gun;
The Applicant was concerned that he was not provided with information or answers to his questions regarding the health, education and welfare of the Children despite being an access parent; especially in relation to his son’s bringing a gun to school;
The Applicant was concerned that the access visits had not resumed in his home; with the Respondent’s workers’ refusal to supervise access at his home because he owned a BB gun; with the Respondent’s requirements for access (scheduling, limits on activities) and with the Respondent’s refusal to approve suggested access supervisors (Candy McLaughlin);
The Applicant was concerned that he was not provided with documents by the Respondent prior to various court dates;
The Applicant was concerned with a letter submitted to the Court by the Respondent indicating that the Applicant was responsible for the Children’s trauma; and
The Applicant was concerned with why he was not informed of a data breach; and the Respondent’s failure to answer his concerns regarding the breach.
4In its Summary Reply to the Application the Respondent argued that the entirety of the complaint dealt with the Applicant’s request for information held in its records. It argued that Applicant was not a service recipient and therefore the CFSRB could not review his complaint pursuant to section 120(4) of the Act. The Respondent provided services to the Applicant’s children and the children’s mother in 2020.
5In addition, given that the Applicant was not a service recipient, the information in the records regarding the recent service to his family involved personal information related to his children and possibly their mother. The records requested by the Applicant did not contain his personal information.
6The Respondent indicated that Part X of the Act does not allow a child welfare agency to release the personal information of individuals without their consent or without a court order. In this case, the children and their mother have denied their consents to release their personal information to the Applicant. The Applicant must go to the Information and Privacy Commission of Ontario (IPC) to complain about the Respondent’s refusal to provide him with the information he requested about his children. The CFSRB does not have the jurisdiction to address complaints related to information disclosure.
7In a Case Management Direction (CMD) dated January 18, 2021, the following 3 jurisdictional issues were identified:
Are issues such as the health and safety of the children, supervised access, access requirements, and access supervisors currently before the Court or have they been before the Court? (as per section 120(8) of the Act);
Was the Applicant a recipient of service at the time he expressed the concerns outlined above? (as per section 120(4) of the Act). This also involves whether or not the Applicant is considered a parent under section 2(2) of the Act; and
Does the Applicant have the right to obtain information about his children without consent or a court order as per Part X of the Act?
8The parties were directed to provide submissions on the 3 issues.
9In its submissions, the Respondent argued that the Applicant is currently engaged in family law litigation which deals with issues related to the Children’s health and safety, supervised access, access requirements, and access supervisors. The Respondent has been asked to provide input to the Courts regarding any ongoing protection concerns and its position regarding access.
10The Respondent argued that the Applicant was not a recipient of service at the time he expressed the concerns in his complaint. The Respondent was involved with the family from October of 2013 to July of 2019. The Children were placed into their mother’s care on a full-time basis with supervised access to their father in February 2017. The Respondent terminated its legal involvement with the family in March of 2018, and closed the file on July 15, 2019. The Respondent provided service to the Children and their mother in January 2020 when the shot gun incident took place.
11Finally, the Respondent reiterated its position that the information that the Applicant is seeking concerns the Children and their mother. Part X of the Act prohibits the release of third-party information without consent or a court order. The Children and their mother have denied their consent. The Applicant is free to pursue the access to information complaint with the IPC.
12The Applicant indicated that issues of the health and safety of the Children, supervised access, and access supervisors have been brought before the Court. On December 19, 2019, the Court indicated that it wanted to know why the Respondent had not been involved after the Parenting Capacity Assessment, and wanted the Respondent’s position on a third-party access supervisor. The Applicant indicated that these issues had nothing to do with the information that the Applicant is seeking from the Respondent.
13The Applicant indicated that nowhere has the Respondent indicated that it had closed the file with the Children and their mother; however, communication, or lack thereof, between the Respondent and the Applicant did not address whether the Applicant’s file was closed and whether the Applicant was in receipt of services. The Applicant was not issued a letter from the Respondent confirming that his file had been closed.
14The Applicant has repeatedly requested information about the Children from the Respondent. The Applicant feels that he is entitled to information about his Children as he is an access parent and has rights to visit and have information about the Children. He is concerned with the shot-gun incident. He feels that the Respondent and/or the Children’s mother is hiding information from him to which he feels entitled.
THE LAW
Issues Before the Court
15Section 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.
16Paragraph 35 of Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441 addresses the fact that the CFSRB can review issues that are separate and different than the substantive issues before the Court.
Recipient of Service
17Section 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.
18Subsection 4 of section 120 allows the CFSRB to review a complaint that addresses allegations that a society has failed to comply with subsection 15(2). Subsection 15(2) addresses the rights of children and parents to be heard and represented. It reads:
“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.”
19The Act defines “service” as follows:
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 purpose of the Youth Criminal Justice Act (Canada) or the Provincial Offences Act, or
i) a prescribed service; (‘service’).
20A parent is defined in section 2(2) of the Act as:
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 is unavailable or unable to act, as the context requires.
Disclosure of Personal Information
21Part X of the Act addresses the legal requirements for the collection, use, and disclosure of personal information by child welfare agencies. Section 286 indicates that a service provider (child welfare agency) cannot collect, use or disclose information without the consent of the person to which the personal information relates, or which is necessary for a lawful purpose. Section 292(1) outlines the conditions under which a child welfare agency can disclose personal information without consent. The CFSRB does not have jurisdiction to review complaints regarding the disclosure of personal information. As of January 2020, complaints around the disclosure of personal information held by child welfare agencies will be heard by the Office of the Information and Privacy Commissioner. The CFSRB cannot review any complaints dealing with access to personal information in child welfare records.
ANALYSIS
Access to Documents
22I turned my mind to the Applicant’s request for information regarding his Children, as well as his complaint regarding an accidental privacy breach.
23The Respondent indicated that the Children and their mother have refused to consent to the release of their information to their father. Part X of the Act indicates that the CFSRB does not have jurisdiction to deal with issues of gathering, use, disclosure, retention, and destruction of personal information. Complaints regarding access to and the disclosure of private information fall squarely within the jurisdiction of the IPC.
24In addition, the IPC is responsible for receiving, investigating, and mitigating privacy breaches. Ms. Megan Scott has been informed of an email data breach with the Respondent. She has been directed to contact the IPC for more information and/or to make a complaint. It is unknown whether the breach contained any private information regarding the Applicant.
25For these reasons, the CFSRB does not have jurisdiction to address Issues 2 and 6 in the Applicant’s complaint.
Issues Before the Court
26The Applicant argued that the Respondent did not hear his concerns regarding the health and safety of the children; access; supervised access; and the Respondent’s assertions in a letter to the Court indicating that the Applicant was responsible for the Children’s trauma.
27A review of the documents provided by both parties indicates that these issues are currently before the Court. The Applicant and the Children’s mother are engaged in family law litigation which addresses the best interests of the Children, including their health and safety. The Respondent has been asked by the Court to comment on several issues, including Issues 1, 3 and 5 outlined in the Applicant’s complaint.
28The Endorsement dated November 20, 2020 addresses the issue of access, supervised access, and the nomination of a particular individual to supervise access.
29The Respondent sent a letter to the Family Court which indicated that Justice Graham requested a Respondent worker to be present to provide answers and feedback regarding the Parenting Capacity Assessment, family counselling, third-party supervisors, and whether or not the Respondent had an open file with the family. The letter confirmed that the file with the Children’s mother was closed in July of 2019. The Applicant has not contacted nor has requested services or support from the Respondent. The Applicant has not engaged in any access with the Children since February of 2019 and the Respondent only supported supervised access. The Applicant did not complete counselling as recommended in the parenting capacity assessment. The letter discussed third-party access supervisors, including the person mentioned in the Applicant’s complaint. In addition, the letter spoke to the Respondent’s position regarding the move of the Children to another province.
30In another letter to the Court dated November 30, 2020, the Respondent indicated that the Respondent was working with the mother in a supportive role to assist the family in dealing with the aftermath of the trauma caused by the Applicant.
31For these reasons, I find that issues related to the health and safety of the Children; access, and supervised access; and the Respondent’s assertion that the Applicant has caused trauma to the Children have been placed before the Court. The Applicant is free to address these issues in the Court.
32As such, I find the CFSRB does not have jurisdiction to address issues 1, 3 and 5 in the Applicant’s complaint as these issues are before the Court. The CFSRB does not have jurisdiction to address issues before the Court as per section 120(8) of the Act.
Disclosure at Court
33The Applicant complained that the Respondent did not disclose documents in a timely manner. These documents related to Court proceedings. The most appropriate forum for the Applicant to address these disclosure concerns is before the Court. As such, the CFSRB does not have the jurisdiction to address Issue 4 in the complaint.
Was the Applicant in Receipt of Service?
34Given that I have found that the CFSRB does not have the jurisdiction to address all of the Applicant’s concerns pursuant to Part X and section 120(8) of the Act, I do not have to comment on the issue of whether the Applicant was in receipt of service.
ORDER
35The Application is dismissed in its entirety.
CONFIDENTIALITY ORDER
36Pursuant 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.
Dated at Toronto, this 25^th^ day of February, 2021.
Daniel McSweeney
Daniel McSweeney
Member