JB v. Family and Children’s Services of Renfrew County, 2021 CFSRB 33

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JB Applicant

-and-

Family and Children’s Services of Renfrew County Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney Date: May 11, 2021 Citation: 2021 CFSRB 33 Indexed As: JB v Family and Children’s Services of Renfrew County (CYFSA s.120)

WRITTEN SUBMISSIONS

JB, Applicant Self-represented

Family and Children’s Services of Renfrew County, Respondent Anaïs Lussier-Labelle, Counsel

INTRODUCTION AND BACKGROUND

1This is an Application (“Complaint”) 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 Complaint was found eligible pursuant to sections 120(4)4 and 120(4)5 of the Act. It is alleged 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; and the Respondent is alleged to have failed to provide the Applicant with reasons for a decision that affected his interests.

3The Applicant is the father of one son (the “Child”).

4The Applicant identified the following concerns/issues in the Complaint and approximately 25 documents appended to the Complaint:

1. The Applicant was concerned that the Respondent has not heard his concerns regarding access with the Child including in person and telephone access;
2. The Applicant was concerned that Respondent staff failed to encourage and make efforts to arrange access with the Child;
3. The Applicant was concerned that the Respondent disregarded the Applicant’s reports of abuse, and parental alienation by the Child’s mother, and failed to open a child abuse investigation;
4. The Applicant was concerned that Respondent staff failed to provide him with documentation regarding alleged missed access visits;
5. Respondent staff witnessed the Applicant’s former partner lying in Court regarding cancelled access visits;
6. The Applicant was concerned with the verification findings of an ongoing risk of emotional harm to the Child because of post-separation conflict; and the reasons for closing the file;
7. The Applicant was concerned with the access conditions imposed by the Respondent;
8. The Applicant was concerned that he was being discriminated against by Respondent staff for the last 5 years and that Respondent staff were biased towards him; including Respondent allegations regarding the Applicant’s alleged mental health;
9. The Applicant was concerned that the Respondent disregarded his inquiries regarding evidence of his son’s alleged “severe autism”, and his requests for documents regarding the Child’s diagnosis of “severe autism”.
10. The Applicant was concerned that Respondent staff failed to respond to his telephone calls and e-mails; and
11. The Applicant was concerned that the Respondent suspended his supervised access with the Child based on perceived harassment and his posting recordings and videos on social media.

5In its Summary Response, the Respondent argued that the Applicant has been provided with an opportunity to have his concerns heard; and the Respondent has provided the Applicant with reasons for its decisions on his complaint. The Respondent also argued that some of the Applicant’s complaints (access, alleged events that took place in Court; parental alienation allegations) are issues that have been raised before the Courts and therefore the CFSRB is prohibited from reviewing the complaint as per section 120(8) of the Act.

6In a Case Management Direction (CMD) dated April 21, 2021, the Applicant was directed to provide submissions on whether the issues in his complaint have been or will be before the Court. The Applicant replied: “no issues are before the court as of now”. He indicated that his most important issues are the Child’s mother’s allegation of severe Autism being used as an excuse not to let the Applicant’s family meet with the Child; the fact that Respondent staff witnessed the Child’s mother lie in Court regarding the Applicant cancelling visits; and restrictions regarding the Applicant’s ability to speak about sports or additional visits with his son.

THE LAW

7Section 120(8) 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

8The 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

9In analysing the Complaint, I focused on the issue of the CFSRB’s jurisdiction to review issues that were before the Court or are currently before the Court.

10I have decided to solicit additional submissions on Issues 10 and 11 and on the format of the hearing as per the Directions section below.

11Section 120(8) of the Act is clear that the CFSRB cannot conduct a review of a complaint if: “the subject of the complaint is an issue that has been decided by the court or is before the court”. My reading of this section of the Act confirms that the concept of “subject of the complaint” is a broad category that encompasses more than the content of any specific issue raised by a party before the Court. As such, a specific issue may not have been raised in Court proceedings; however, the proceedings may have addressed the broader subject matter included in a complaint.

12After careful review of the documents provided by the Applicant and the Respondent, I find that Issues 1-9 were issues that have been addressed by the Court in the past and therefore fall outside the CFSRB’s jurisdiction. I find that issues related to access and the Respondent’s position and actions regarding access; allegations of abuse or harm by the Child’s mother; parental alienation, the Child’s diagnosis of Autism; post-separation conflict between the parents; and allegations of bias against the Applicant, including his mental health; have been squarely before the Court in the form of various documents. For example, the issue of the Applicant’s right to access at the discretion of the Child’s mother was decided in a Final Order dated February 19, 2019.

13The Applicant has a Family Court history that goes back to 2015. The most recent Court involvement was a Child Protection Application dated September 21, 2020 in which the Respondent sought a Supervision Order for the Child to address issues of potential parental alienation and access. The documents filed in reference to this Application addressed Issues 1 – 9 in the Applicant’s Complaint. The Application argued that the Child would suffer emotional harm as a result of the lack of contact with the father and that the Child is being deprived of a meaningful relationship with his father. The Application addressed the Respondent’s plan for access which addressed the following issues: supervision, frequency, location, participants; restrictions regarding topics to be addressed during access including the Child’s Autism diagnosis; and communication about access.

14The Application also provided a summary of risks to the Child including risks associated with domestic conflict; the Applicant’s anger management and mental health; and his aggression and threats towards Respondent workers. In addition, the Application outlined the Respondent’s concerns of emotional harm to the Child as the result of having no contact with his father since April of 2018, and the Respondent’s efforts to encourage and support access. In fact, the documents confirm that the Respondent consulted an expert in the field of parental alienation on how best to support the Applicant and to mitigate the risk of emotional harm to the Child. The Application conceded that there was no evidence that the Child’s mother has failed to meet the Child’s other needs. The Court also had before it evidence related to the Applicant’s mental health, as well as the Applicant’s allegations that the Respondent was biased against him.

15The Application was accompanied by a detailed affidavit from JT (Child Protection Worker) dated September 1, 2020. The Affidavit addressed the following issues:

• the family’s history with child welfare dating from 2013
• current and historical risks of harm associated with the family (including historical allegations about the Child’s mother) and the Applicant’s concerns regarding the impact of the lack of access on his son’s mental health and their relationship
• access and supervision orders, and the Applicant’s history of access with his son
• the Respondent’s investigation opened in January 2020, and its conclusions that the Child is not at risk with his mother (other than the issue of alienation)
• the Respondent’s perspective on past allegations of risk or harm to the Child alleged by the Applicant
• the Respondent’s attempts to engage the Child’s mother in working with them and with the Applicant on issues of access, access conditions etc.
• parental alienation, and the Respondent’s efforts to mitigate the impact of parental alienation, including through consultation with an expert, and bringing the Application
• current and historical post-separation conflict between the Applicant and the Child’s mother
• the Child’s diagnosis with high functioning Autism and the Applicant’s request to the Respondent for information regarding the diagnosis from professionals and the school; and the Respondent’s attempts to obtain documentation regarding the nature and severity of the diagnosis
• the Applicant’s refusal to continue supervised access
• access conditions and goals to be met that would lead the Child’s mother to approve of access, including during COVID
• the Applicant’s current and past mental health diagnosis and treatment
• the rationale for the closing of The Applicant’s child protection file in December of 2019 and the investigation initiated on January 23, 2020
• the Applicant’s allegations of staff bias and their failure to follow-up protection concerns
• the Respondent’s request for a third-party review of the Respondent’s involvement with the family
• the Words and Pictures exercise and benefits to the Child
• Respondent staff member’s recognition of the Applicant’s frustrations and their commitment to working with him to address the frustrations
• the Applicant’s Facebook messages regarding the Respondent as well as the Applicant’s abusive behaviour towards Respondent staff
• the Respondent’s desire to meet privately with the Child

16The Applicant was concerned that Respondent staff witnessed the Child’s mother lying in Court around access visits. On its face, this issue dealt with statements and evidence presented during a Court process. As such, the Court is the most appropriate forum in which the Applicant can address concerns with the truthfulness of a witness testimony or evidence, and any allegations that Respondent staff witnessed alleged falsehoods presented in Court. The CFSRB does not have jurisdiction to address these issues as they deal with issues that occurred during Court processes. In addition, as noted in the Respondent’s Summary Response, the Applicant was free to address these issues, including the behaviour of the Respondent’s staff, with the Court through his Answer and Plan of Care. The Applicant chose not to do this.

17The Applicant also alleged that the Respondent failed to provide him with documents related to missed access visits. I find that the issue of access visits was before the Court. The Applicant could have asked the Court to order the production of these documents. Furthermore, even if the issue was not before the Court, the CFSRB does not have jurisdiction over requests for the disclosure of documents. Such requests need to be addressed to the Office of the Information and Privacy Commissioner of Ontario.

18Based on my review of the documents and the reasons cited above, I find that the Issues 1 – 9 in the Applicant’s Complaint were placed squarely before the Court. As such, the CFSRB does not have jurisdiction to address these issues pursuant to section 120(8) of the Act.

INTERIM DECISION ON JURISDICTION

19For the reasons identified above, Issues 1 – 9 in the Applicant’s Complaint are dismissed in their entirety.

REMAINING ISSUES IN THE COMPLAINT

20The remaining 2 Issues (10 and 11) dealt with the interaction between the Applicant and Respondent staff.

21Given the evidence before me of the acrimonious relationship between the Applicant and Respondent staff, I have decided to solicit submissions from both parties on these 2 Issues. The Applicant is invited to provide written submissions and/or additional documentation in support of Issues 10 and 11.

22The Respondent has addressed the 2 Issues in its Summary Reply. The Respondent is also invited to provide additional documents or submissions should it deem necessary.

23In addition to submissions on the merits of the Complaint, I direct both parties to provide submissions regarding the format of the hearing.

24The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or videoconference. Subsection 8.1 of the Rules state:

In deciding the format of a hearing, the CFSRB will consider:

a) whether it is a fair and accessible process for the parties; b) the costs and efficiency of the process; c) the potential for a more expeditious resolution; d) the convenience of the parties; e) the consistency with the CFSRB’s mandate; f) whether the facts or evidence may be agreed upon; g) the estimated duration of the hearing; h) whether the issues for hearing are predominantly legal issues; i) whether oral testimony is likely to be needed; j) any objections to the format of the hearing.

DIRECTIONS

25The Applicant will provide submissions and any additional evidence on Issues 10 and 11 to the CFSRB and the Respondent on or before May 25, 2021.

26The Respondent will provide any additional submissions or documentation to the Applicant and the CFSRB on or before May 28, 2021.

27Both parties will provide submissions to the CFSRB and each other on the format of the hearing on or before May 28, 2021.

28The CFSRB may issue additional directions.

CONFIDENTIALITY ORDER

29Pursuant 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.