WH v. Children’s Aid Society of Frontenac, Lennox and Addington, 2021 CFSRB 37

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

WH

Applicant

-and-

Children’s Aid Society of Frontenac, Lennox and Addington

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: May 27, 2021

Citation: 2021 CFSRB 37

Indexed As: WH v Children’s Aid Society of Frontenac, Lennox and Addington (CYFSA s.120)

WRITTEN SUBMISSIONS

Children’s Aid Society of Frontenac, Lennox and Addington, Respondent

Tina Tom, 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”). The Child was apprehended from his mother’s home and placed temporarily by the Court in the home of the Child’s half-sibling.

4The Applicant identified the following concerns/issues in his Complaint:

1. The Respondent did not contact him when the Child was apprehended from his mother’s home based on false allegations made about the Applicant’s housing situation and allegation of drug use;

2. The Respondent did not make efforts to contact the Applicant regarding the first Court appearance which he missed;

3. Respondent staff failed to follow-up on the Applicant’s plan of care;

4. The Respondent did not hear the Applicant’s concerns regarding custody and access concerns with Mr. R (the father of the Applicant’s son’s half-sister) with whom the Applicant’s son was placed;

5. The Respondent failed to hear the Applicant’s concerns regarding parental alienation as a result of Mr. R’s behaviour; and the Applicant’s request that the Child be removed from Mr. R’s home;

6. Respondent staff did not provide the Applicant an explanation regarding why his access was limited to two hours on one occasion;

7. The Applicant was concerned that he was treated rudely by one Respondent staff member who also did not respond to his communication in a timely fashion.

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. The Respondent attempted to contact the Applicant after the apprehension of the Child; however, staff were unable to reach the Applicant as the phone numbers did not work or were not answered. Issues related to custody and access were addressed in Family Court Orders and in the Applicant’s Answer and Plan of Care. The Respondent has worked with the Applicant on increasing his access, including in person access, although the Applicant’s participation in ongoing and regular contact has been challenging. The Court ordered a parenting capacity assessment in order to guide the Respondent’s decisions regarding the Child. The Applicant did not participate in the assessment. The Applicant participated in a Settlement Conference during which the Applicant agreed to engage in alternate dispute resolution.

6The Respondent argued that the matters are still before the Court and that it has heard the Applicant’s concerns and provided him with reasons for its decisions through Court documents and through his participation in the legal proceedings.

7In a Case Management Direction (CMD) dated April 23, 2021, the parties were directed to provide submissions on whether the issues in the complaint have been or will be before the Court.

8The Applicant did not provide submissions.

9The Respondent provided submissions as well as several Court documents in support of its position that all the issues in the Applicant’s complaint are directly before the Court.

THE LAW

10Section 120(8) of the Act 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 the CFSRB had jurisdiction to address the Issues in the Complaint.

13Section 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.

14After careful review of the submissions and documents provided by the Respondent, I find that Issues 1 – 5 were placed before the Court and therefore the CFSRB is precluded from addressing these issues. Issues 6 and 7 were issues that were not before the Court and therefore the CFSRB has jurisdiction to address these 2 issues pursuant to section 120 of the Act.

15The inability of the Respondent to reach the Applicant before the initial Court hearing was addressed in Justice Trousdale’s Endorsement dated October 11, 2019. Justice Trousedale noted that the Applicant had not been served but was aware of the court appearance and wished to participate in future Court proceedings. An additional Endorsement dated February 20, 2020 addressed the fact that the Respondent had not had recent contact with the Applicant prior to the removal of the Child. Based on the Endorsements and Court documents, I conclude that the issue of notification of the apprehension of the Child; the reasons for apprehending the Child; and informing the Applicant about Court proceedings were issues that were before the Court. Therefore, the CFSRB does not have jurisdiction to address Issues 1 and 2.

16I note that the Endorsement dated February 20, 2020 discussed the Court’s perspective on the Applicant’s Answer and Plan of Care. One of the Court’s requirements was for the Applicant to participate in a parenting capacity assessment. The Respondent argued that this was required for staff to further assess and move on with the Applicant’s Plan of Care. The Endorsement Sheet dated August 6, 2020 indicated that the Assessment would be finished, and its findings presented at Court with or without the Applicant’s participation. Given this, I find that the Applicant’s concern regarding the Respondent not following-up on the Answer and Plan of Care was squarely before the Court. As such, the CFSRB does not have jurisdiction to address Issue 3 in the Complaint.

17The October 11, 2019 Endorsement confirmed that issues related to the placement of the Child with Mr. R, and supervised access at the discretion of the Respondent were discussed and decided at Court. The Applicant has had, and continues to have the opportunity to raise his concerns regarding custody and access at the Court proceedings, including his concerns with Mr. R’s alleged behaviour in controlling the Child, limiting access, and alienating the Child from his father.

18The Applicant’s Answer and Plan of Care provided the Applicant’s opinions/wishes related to issues of access and custody. It also provided the Applicant with an opportunity to dispute the Respondent’s allegations against the Applicant and demanded proof of the allegations. It also addressed the fact that the Applicant was in the process of looking for an appropriate home for he and the Child and recognized that the Respondent may wish to recommend supports for his parenting.

19With respect to the allegations of parental alienation and Mr. R’s efforts to obstruct access between the Applicant and the Child, I note that the Court Ordered Parenting Capacity Assessment, dated March 8, 2021 addressed Mr. R’s parenting behaviours as well as the Child’s opinion related to access visits with the Applicant. The Assessment found that the Child made no requests for access with his father and that the Child did not have any negative opinions of Mr. R’s residence other than indicating that there was more yelling there. The Assessment indicated that no outstanding protection issues were highlighted in relation to Mr. R; however, there were some issues related to relationship/attachment, co-parenting, and controlling behaviours that need to be addressed.

20For these reasons, I find that Issues 4, and 5 relating to custody and access, and Mr. R’s parenting of the Child have been placed before the Court.

21I considered the Applicant’s allegation in the Complaint that he was not provided with an explanation why his access was limited to 2 hours on one occasion. I find that this particular issue is outside the issues placed before the Court as it deals with the Respondent’s discretion regarding access. Pursuant to section 120 (4)5 of the Act, the Applicant is entitled to an explanation for the Respondent’s decisions. I have not been able to locate any specific reference to this access decision in the Court documents presented by the Respondent. As such, I find that the CFSRB has jurisdiction to review this issue.

22The Applicant alleged that he was treated rudely and did not have his calls returned within a reasonable time by Respondent staff when he was trying to arrange access with his son (see bottom of page 3 of the Application). This issue deals with the actions and decisions by an individual staff member which fall outside the issues that were addressed at Court. Given this, I find that the CFSRB has jurisdiction to review this aspect of the Complaint and to receive an explanation for the treatment he alleged he received from Respondent staff.

DECISION

23For the reasons identified above, Issues 1 – 5 are dismissed as the CFSRB does not have jurisdiction pursuant to section 120(8) of the Act to review these Issues. The CFSRB does have jurisdiction to review Issues 6 and 7 pursuant to sections 120 4 and 5 of the Act.

24The parties will receive communication from a Case Processing Officer regarding next steps in relation to Issues 6 and 7.

CONFIDENTIALITY ORDER

25Pursuant 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.