RF v. Catholic Children’s Aid Society of Hamilton, 2021 CFSRB 50

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

RF

Applicant

-and-

Catholic Children’s Aid Society of Hamilton

Respondent

DECISION

Adjudicator: Daniel McSweeney Date: July 08, 2021 Citation: 2021 CFSRB 50 Indexed As: RF v Catholic Children’s Aid Society of Hamilton (CYFSA s.120)

WRITTEN SUBMISSIONS

Catholic Children’s Aid Society of Hamilton, Respondent

Mona Anis, 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 daughters (the “Children”).

4The Applicant identified the following Issues/Concerns in his Complaint:

1. The Applicant alleged that his concerns regarding the health and safety of the Children and their exposure to their mother while residing in their maternal grandparents’ home were not heard by Respondent staff;

2. The Applicant was concerned that the Respondent added the maternal grandparents as a party to the child protection proceedings and did not hear his concerns about the grandfather’s violent behaviour, and both grandparents’ drug use;

3. The Applicant was concerned that the Respondent allowed the Children’s mother to put forward lies about him during the child protection proceedings;

4. The Applicant alleged that the Respondent was biased against him and this has been illustrated through the joint timesharing arrangement between the Applicant and the Children’s grandparents; and the worker taking the grandparents’ side in relation to the Applicant’s complaints/concerns about them;

5. The Applicant alleged that Respondent staff do not have the best interests of the Children at heart; and

6. The Applicant was concerned that the Children’s mother and grandparents are breaching the temporary access and custody orders of the Court.

5In a letter from the CFSRB dated June 9, 2021, the Respondent was directed to address the issue of whether the CRSB is barred by section 120(8)(a) of the CYFSA from reviewing some or all of the Application.

6The Respondent submitted that issues of the Children’s placement; timesharing between the Applicant and the maternal grandparents; and the terms of the Respondent’s supervision are issues that are before the Court and have been decided by the Court. These issues are not subject to the CFSRB’s review pursuant to section 120(8) of the Act.

7In addition, the Respondent argued that the Applicant’s Children were subject to a temporary order which placed them in the joint care of the maternal grandparents and the Applicant. Issues regarding custody and access would be addressed at a settlement conference scheduled for July 5, 2021.

8The June 9, 2021 letter from the CFSRB provided the Applicant with 10 days after he received the Respondent’s Summary Response to make written submissions on the issue of jurisdiction.

9The Respondent provided its Summary Response to the CFSRB and the Applicant (by e-mail) on June 18, 2021. The Applicant had until June 28, 2021. The CFSRB has not received a response from the Applicant despite allowing for an additional 7 days.

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 Respondent’s submissions and the Consent to Temporary Order provided with the submissions, I find that all the Issues/Concerns outlined by the Applicant are issues that have bene before the Court or are currently before the Court. The parties most recently were scheduled to attend a Settlement Conference on July 5, 2021.

15I note that the Consent to Temporary Order discusses the following issues: timesharing between the Applicant and the maternal grandparents; the mother’s access to the Children; non-smoking in the caregivers’ homes; interaction between the caregivers and Respondent staff; expectations of parents including drug testing; the mother’s ongoing treatment for substance use and mental health; information sharing between the caregivers regarding the Children’s medical needs and appointments; status of the maternal grandparents as parties; and representation of one of the Children by the Office of the Children’s Lawyer.

16The Applicant was concerned with the health and safety and best interests of the Children. These issues were before the Court in relation to the Temporary Order, and continue to be before the Court in relation to the settlement conference. The Applicant is represented by counsel, and therefore can raise these issues at Court. He also has a right to challenge the contents of any party’s affidavits or evidence, including evidence that he feels portrays him in a bad light or is untrue.

17The Consent to Temporary Order indicates that the maternal grandparents were added as parties, and therefore the issue of their standing was before the Court.

18Any breaches to the Temporary Order as well as any subsequent orders are issues that must be addressed in the Court, and not through the CFSRB process.

19What is in the best interests of the Children is before the Court and the judge will make a final determination on this issue, not the Respondent.

20I did not find that any of the Issues/Concerns in the Applicant’s Complaint were distinct from issues that were before or are currently before the Court. As such, I find that the exception in Children’s Aid Society of Waterloo v. DD does not apply to this Complaint.

DECISION

21For the reasons identified above, I find that all the Issues/Concerns in the Applicant’s Complaint have been and/or are currently before the Court. As such, the CFSRB does not have jurisdiction to review the Issues/Concerns pursuant to section 120(8) of the Act.

22The Complaint is dismissed in its entirety.

CONFIDENTIALITY ORDER

23Pursuant 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.