CT v. Children’s Services of Guelph and Wellington County, 2021 CFSRB 31

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

CT

Applicant

-and-

Children’s Services of Guelph and Wellington County

Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney

Date: May 10, 2021

Citation: 2021 CFSRB 31

Indexed As: CT v Children’s Services of Guelph and Wellington County

(CYFSA s.120)

WRITTEN SUBMISSIONS

CT, Applicant

Self-Represented

Children’s Services of Guelph and Wellington County, Respondent

Antonio Circelli, 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 received. 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:

1. Respondent staff failed to hear his concerns related to the Children’s mother’s alleged alcohol use; her driving while under the influence; her abusive behaviour towards the Applicant, and the Children; and the impact that this behaviour had on the Children;

2. The Applicant was not provided with an explanation as to why the file was closed within 3 days and without giving him the opportunity to question workers or to express his concerns;

3. The Applicant was not provided reasons for the Respondent’s involvement in access decisions (e.g. lifting of supervised access conditions, scheduling of access between the parents);

4. The Applicant was not provided with adequate reasons/explanations for the Respondent’s verification decisions (child exposure to partner violence; and exposure to post-separation caregiver conflict) associated with the Children’s mother’s drinking; her involvement in physical altercations with the Applicant; and her alleged treatment of the Children; e.g. why was the Applicant informed that the mother’s drinking was a “one-time occurrence” despite the Applicant arguing that there were patterns of drinking and abusive behaviour;

5. The Applicant was not provided with reasons as to the weight the Respondent placed on the evidence provided by the Applicant (e.g. evidence of additional assault charges; ex-partner’s alcohol use; article on parental alienation) in arriving at its verification findings;

6. The Applicant was not provided with information to reassure him that the Children’s mother would not be drinking around the Children;

7. The Manager did not hear his concerns and respond to the Applicant’s correspondence in a timely manner;

8. The Applicant was concerned that the Respondent’s findings and verification decisions by the Respondent represented a gender bias in favour of the Children’s mother and blamed him as the victim;

9. The Applicant was not provided with an explanation as to why some information in the file appeared to be missing;

10. The Applicant was not provided with an explanation for the Respondent’s handling of the e-mail of March 19, 2020 which allegedly disappeared; and

11. The Applicant’s request to have the file transferred to Kitchener FCS was not heard by the Respondent.

4In a Case Management Direction (CMD) dated April 20, 2021 the Applicant was directed to provide with Respondent with Children’s Law Reform Act (CLRA) documents related to Court proceedings between he and his former spouse. The Applicant provided the CFSRB and the Respondent with an Application, Affidavit, Affidavit in Support of claim for Custody or Access, and an Answer submitted to the Court.

5In addition, parties were directed to provide submissions regarding whether the CFSRB had jurisdiction to review the Applicant’s complaint pursuant to the exclusion in section 120(8) of the Act.

6In its submissions, the Respondent argued that the CFSRB did not have jurisdiction to hear issues 1, 2, 3, 4, 5, 6, and 8 in the Complaint as these issues were before the Court or had been before the Court. The Respondent indicated that the Court documents revealed that the Applicant and his former partner both have made unsubstantiated complaints to the Respondent regarding the care of the Children. The Respondent argued that these issues cannot be disconnected from issues that are before the CLRA Court and therefore cannot be adjudicated by the CFSRB.

7In addition, the Respondent indicated that it would be premature for the CFSRB to determine jurisdiction until the live issues before the CLRA Court can be dealt with, including issues related to process. The CFSRB should not make findings relating to process in advance of the Court’s findings.

8In his submissions, the Applicant argued that a privacy breach and concerns regarding the completeness of notes and evidence in his file put him at an unfair disadvantage in the CFSRB proceedings as well as proceedings at Family Court. The Applicant asked that the files be amended to include evidence he provided to the Respondent before the case goes to Family Court. The Applicant sees the CFSRB as the first step in this amendment process.

9The submissions also addressed an incident dated January 13, 2019 and the Applicant’s concerns regarding evidence related to this incident.

THE LAW

10Section 120(8) states that the:

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

11The 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

12I turned my mind to whether or not issues identified by the Applicant in his Complaint are before or were before the Court, and therefore, whether the CFSRB had jurisdiction to address these issues.

13I considered the Applicant’s submissions on jurisdiction. These submissions deal with issues related to completeness of the Applicant’s child protection file and an alleged privacy breach. I have already decided that these issues are outside the CFSRB’s jurisdiction and need to be addressed through the Office of the Information and Privacy Commission of Ontario (see paragraph 10 of the Pre-Hearing Report dated March 29, 2021).

14I considered the Applicant’s statement that the CFSRB process is the first step in having his file amended for Family Court. Again, I have explained to the Applicant that the only 2 issues that the CFSRB can address are: was the Applicant heard, and was the Applicant provided with reasons for the Respondent’s decisions. I also have informed the Applicant that any documents or decisions arising from the CFSRB process are subject to the CFSRB’s Confidentiality provisions. As such, the Applicant cannot use any documents in Family Court without an order from the Court or without permissions from the CFSRB.

15It is clear from the documents disclosed by the Applicant that he is currently involved in acrimonious CLRA proceedings dealing with issues of custody, access, and support. In addition, the documents comment about various criminal charges and proceedings that both the Applicant and his former partner have faced or are currently facing. I concur with the Respondent that the documents presented to the Court indicated that both the Applicant and his former partner have made unsubstantiated allegations regarding the care, safety, and health of the Children.

16I concur with the Respondent’s submissions that Issues 1, 2, 3, are issues that are currently before the Court or have been before the Court. I find, however, that issues related to the Respondent’s verification and other decision-making processes (Issues 4, 5, 8) are separate and different from issues that are before the Court.

17With respect to issues that are or were before the Court, I considered the Applicant’s Answer dated March 1, 2021. The Applicant’s Answer outlined his concerns with his former partner’s ability to parent the children including: her problems with alcohol and DUI; her assaultive behaviour, including assaults in front of the Children; allegations of verbal and emotional abuse; and her criminal record. The Answer indicated that these concerns were reported to the Respondent and the Respondent closed the file (see paragraph 28 in the Applicant’s Answer). I find that Issues 1 and 2 have been placed squarely before the Court through the Applicant’s Answer. As such, the CFSRB does not have jurisdiction to address these issues.

18The Court documents address the Applicant’s and his former partner’s positions regarding access and custody of the Children. The Applicant’s Answer addresses the Respondent’s role in access flowing from the Applicant’s former partner’s DUI charges. As such, I find that Issue 3 is squarely before the Court.

19Issue 6 deals with the Applicant not being reassured that the Children’s mother would not be drinking around the Children. I find that this Issue has been raised in the documents presented to the Court. This issue also relates to decision-making around custody and access and the best interest of the Children which the Court is tasked to decide.

20The Applicant’s Answer addressed the incident of March 1, 2020, the DUI charges and the Respondent’s role in removing the Children from their mother’s care, temporary restrictions to access, and requirement of supervised access imposed by the Respondent.

21As such, I find that the CFSRB does not have jurisdiction to address this Issue as it relates to a fundamental issue that the Court is tasked to decide.

22I do find, however, that issues related to the logic behind the Respondent’s reasons and the Respondent’s explanations for its decisions (Issues 4, 5, and 8) are not before the Court and the Court will not make findings on whether the Applicant was heard and whether the Applicant was provided with adequate reasons for the Respondent’s decisions. The Applicant has a right to know why the Respondent made the decisions that it made.

23For example, Issue 8 deals with the Applicant’s allegations that the Respondent’s actions and verification decisions represented a gender bias in favour of the Children’s mother. While the facts regarding individual incidents and the Respondent’s conclusions may be before the Court, the issue identified by the Applicant is separate and different from these issues. The Applicant is concerned with alleged gender bias in the decision-making of the Respondent and its staff. This issue was not raised in the Court documents presented by the Applicant. This issue deals with the interaction between the Applicant and Respondent’s staff and the reasoning of the Respondent’s decisions.

24The Respondent has not provided me with any evidence that it is a party to the CLRA proceedings; therefore, the Applicant would not have an opportunity to address the Respondent’s decisions through the Court process. The CFSRB therefore has jurisdiction to address these Issues.

25I note that the Respondent did not challenge the CFSRB’s jurisdiction in relation to items 7, 9, 10, and 11.

DECISION

26I find that the CFSRB does not have jurisdiction to address Issues 1, 2, 3, and 6 as these issues are issues that are currently before the Court. The CFSRB is prohibited from addressing issues that were or are before the Court by section 120(8) of the Act.

27I find that the CRSRB does have jurisdiction to address Issues 4, 5, 7, 8, 9, 10, and 11 as these are issues that are separate and different from issues that are or were before the Court. The hearing will focus on these issues only.

28A one-day hearing by videoconference has been scheduled for May 20, 2021. This may not provide the parties for sufficient time for disclosure as well as filing. As such, I direct parties to provide submissions regarding disclosure and the scheduling of the hearing to each other and the CFSRB by Thursday, May 13, 2021. The submissions should include 3 dates that each party would be available should May 20, 2021 not be available. The member is not available between June 7 – 9, 2021.

CONFIDENTIALITY ORDER

29Pursuant 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.