JT v. Children’s Aid Society of Hamilton, 2021 CFSRB 41

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JT

Applicant

-and-

Children’s Aid Society of Hamilton

Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney

Date: June 03, 2021

Citation: 2021 CFSRB 41

Indexed As: JT v Children’s Aid Society of Hamilton

(CYFSA s.120)

WRITTEN SUBMISSIONS

Children’s Aid Society of Hamilton, Respondent

David Sider, 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 two sons (the “Children”).

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

1. The Applicant was concerned that the Respondent has not heard the concerns he expressed regarding the physical and mental health, safety, and security of his Children while in the care of their mother, and that Respondent staff ignored evidence he presented;

2. The Applicant was concerned that he was not provided reasons for the Respondent’s decisions regarding the health and safety of the Children while in the care of their mother; or that his concerns were minimized by staff in their reasons;

3. The Applicant was concerned that, as a father, he was not informed of the Respondent’s involvement with the Children and of what was happening with his Children;

4. The Applicant was concerned that Respondent staff discriminated against him because of his gender as well as his race;

5. The Applicant was concerned that a Supervisor did not reply to 4 – 5 messages;

and that Respondent staff ignored his requests for information; and

6. The Applicant was concerned that he was accused of threatening a Respondent staff member when he informed her of his intention to lodge a complaint against the Respondent.

5In its Summary Reply, the Respondent argued that the Applicant was provided 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 related to the Children’s mother and the Children’s health and safety are issues that have been raised before the Courts through an unsuccessful Emergency Motion and therefore the CFSRB is prohibited from reviewing the complaint as per section 120(8) of the Act.

6The Respondent was asked to address the issue of jurisdiction related to section 120(8) and addressed this issue in its Summary Reply. The Applicant was provided with 10 days after the Summary Reply to provide submissions on the section 120(8) issue. The Applicant did not provide submissions.

7The Respondent argued that issues regarding the safety of the Children, custody, and access were before the Court and therefore the CFSRB is precluded from reviewing these Issues in the Complaint.

THE LAW

8Section 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

9The 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

10In analysing the Complaint, I focused on the following 2 issues: Does the CFSRB have jurisdiction to review issues that were before the Court or are currently before the Court?; and Are there service issues in the Complaint which are not before the Court which the CFSRB can review?

Issues Before the Court

11In reference to Question 10 in the Application, the Applicant indicated that he was trying to bring an Emergency Motion before the Court on February 17, 2021.

12The Applicant did not provide submissions; however, it is reasonable to assume that the Emergency Motion of February 17, 2021 made reference to the Applicant’s allegations of harm to the Children and safety concerns while in the care of their Mother. The Respondent indicated that the Applicant reported that the Court found that the Applicant did not provide sufficient evidence to support his concerns.

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.

14Given that the Applicant has had an opportunity to present his concerns regarding the physical and emotional health and safety of the Children before the Court, and given that the Court has found that the Applicant has not provided sufficient evidence to support his allegations, I find that the CFSRB is precluded from reviewing Issue 1 pursuant to section 120(8) of the Act. The CFSRB cannot make findings of fact regarding issues that have been decided by a higher Court. As such, Issue 1 in the Complaint is dismissed.

Service Issues

15In its Summary Reply, the Respondent concedes that it has provided the Applicant with services by receiving his concerns, investigating them, and providing him with reasons for the decisions not to verify his concerns.

16Issues 2, 3, 4, 5, and 6 deal with the Applicant’s concerns regarding his interaction with Respondent staff which are separate and different from any issues that were before the Court. These Issues are purely service-related and therefore the CFSRB has the jurisdiction to review them pursuant to section 120 of the Act.

INTERIM DECISION ON JURISDICTION

17For the reasons identified above, Issue 1 is dismissed as the Applicant’s concerns regarding the safety and well-being of the Children were placed before the Court and decided by the Court in his recent Emergency Motion.

18The remaining Issues (2 – 6) can move on. A Case Processing Officer will be in contact with the parties to arrange for next steps, including a Pre-Hearing/Mediation Teleconference.

CONFIDENTIALITY ORDER

19Pursuant 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.