MC v. Family and Children’s Services of Lanark, Leeds and Grenville, 2021 CFSRB 69

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MC Applicant

-and-

Family and Children’s Services of Lanark, Leeds and Grenville Respondent

DECISION

Adjudicator: Daniel McSweeney Date: October 05, 2021 Citation: 2021 CFSRB 69 Indexed As: MC v Family and Children’s Services of Lanark, Leeds and Grenville (CYFSA s.120)

WRITTEN SUBMISSIONS

MC, Applicant Self-Represented

Family and Children’s Services of Lanark, Leeds and Grenville, Respondent Tara MacDougall, 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 boys (the “Children”).

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

1. The Applicant alleged that the Respondent did not hear or ignored his concerns around the safety of the Children when he raised them, including at meetings where he alleged that his voice was not heard by Respondent staff;
2. The Applicant alleged that the Respondent failed to hear his concerns regarding his ex-partner’s support person (his brother);
3. The Applicant alleged that the Respondent failed to provide him answers regarding his inquiries, including not putting any answers in writing; and
4. The Applicant has requested new workers based on an alleged breakdown in the relationship with the family.

5The Respondent submitted that the Applicant’s concerns in the Complaint are issue that are before the Court. As such, the CFSRB is barred from reviewing the Complaint pursuant to section 120(8)(a) of the Act. The Respondent argued that the Applicant does not agree with the position it has taken in child welfare litigation. The Applicant is represented by counsel in the proceedings.

6In the alternative, the Respondent takes the position that the complaints are without merit. The Applicant has been provided with an opportunity to be heard and represented when decisions affecting his interests were made and when he raised concerns about the services he received. The Applicant has also been provided with reasons for the Respondent’s decisions.

7In a Case Management Direction (CMD) dated August 27, 2021, the Applicant was asked to provide written submissions on the CFSRB’s jurisdiction to hear his application, and to identify any aspect of the Complaint which is not before the Court. He was directed to provide his submissions on or before September 8, 2021. The Applicant provided submissions at in an e-mail sent at 2:03 a.m. on September 9, 2021.

8The Applicant indicated that the issues in his Application were not before the Court and have nothing to do with the Children or their placements. The Applicant indicated that he was complaining about the Respondent’s conduct and lack of follow-through. As such, no jurisdictional issues are raised in the Application.

9At 10:38 a.m. on September 9, 2021, the Respondent sent an e-mail to the CFSRB and the Applicant indicating that the CFSRB should not consider the Applicant’s submissions as they were filed late. The Respondent cited Rule 2.1(e) of the CSFSRB Rules of Procedure which state: “a document filed with the CFSRB after 5:00 p.m. will be considered as filed on the next day which is not a holiday”.

10The Applicant responded shortly after indicating that the concerns in his Complaint have nothing to do with the active Court proceedings and he asked the Respondent’s Counsel to stop raising the issue of jurisdiction.

11In an interim decision dated September 13, 2021, I decided that The Respondent has not provided the CFSRB with evidence to support its position that the Applicant’s issues are currently or have been before the Court. Rule 21.2 of the CFSRB Rules of Procedure states:

Where the society takes the position that the CFSRB cannot conduct a review because the subject of the application is:

a) An issue that has been decided by the Court or is before the Court; or b) Subject to another decision-making process under the CYFSA, 2017 or the Labour Relations Act, 1995,

the society must provide submissions in support of its position and attach all relevant documents and any Court orders to the response.

12In this case, the Respondent has not provided any relevant documents to support its submissions.

13I directed the Respondent to provide the CFSRB and the Applicant with any supporting documents regarding child welfare litigation in which the Applicant is involved on or before September 21, 2021. The Applicant was then given until September 28, 2021 to provide any additional submissions on jurisdiction to the CFSRB and the Respondent.

14Given that I provided an extension for the receipt of documents and for submissions regarding the documents, I did not have to make a finding on whether the CFSRB will accept the Applicant’s late submissions.

15The Respondent provided submissions and attached many documents that were filed in various Court proceedings. It argued that Issue/Concern 1 – 3 in the Complaint were issues that were placed before the Court. It argued that Issue/Concern 4 was not within the jurisdiction of the CFSRB.

16Finally, the Respondent cited a decision (CA20-0098) in which the CFSRB found that when credibility was a live issue in Court proceedings, the Court was better placed to address those issues as it has the benefit of the complete record; and has had an opportunity to assess the Applicant’s credibility. The Respondent indicated that this same logic applied to the case before the CFSRB as the Applicant has fraudulently altered a Court Order for material benefit.

17The Applicant submitted that the Court does not deal with complaints regarding the Respondent’s conduct as such the CFSRB has jurisdiction to address the issues in his Complaint.

18The Applicant also indicated that he intended to seek an Order of Clarification by the Judge during proceedings on October 1, 2021 and serve it on the CFSRB. The CFSRB has not received any such order.

THE LAW

19Section 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

20The 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).

21Section 120 of the Act provides that, if a person has “a complaint in respect of a service sought or received from a society [and the complaint] relates to a matter described in subsection (4), the person who sought or received the service may decide” to make a complaint to either the society or the Child and Family Services Review Board (“CFSRB”).

22Section 4(5) indicates that: “the CFSRB may review allegations that the society has failed to provide the complainant with reason for a decision that affects the complainant’s interests.”

23Section 15(2) of the Act ensures that:

“children and young persons and their parents have an opportunity to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.”

ANALYSIS

24I considered the jurisdictional issues associated with the Application.

25Section 120(8) of the Act directs 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”.

26My 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.

27I considered whether the Applicant’s concerns regarding the safety of the Children (Issue/Concern 1) were subjects that were placed before the Court.

28A review of the documents provided by the Respondent confirms that the Applicant’s concerns regarding the safety of the Children were placed squarely before the Court on multiple occasions through multiple Affidavits presented by the Applicant and the Respondent; a Plan of Care for the Children; a Settlement Conference Brief; Notices of Motion; Temporary Orders; and the Applicant’s Affidavit in response to the Respondent’s Application sworn on July 19, 2021.

29For example, the Applicant’s Affidavit dated May 17, 2021 addresses his concerns with the Children while in their mother’s care; as well as the negative impact on the Children of time spent with their cousin and uncle. The Applicant’s Affidavit sworn on July 19, 2021 addresses the Applicant’s concerns for the Children while in the care of their mother. In addition, I note that the Applicant has made Motions to the Court regarding the placement of the Children in which he expressed concerns with the Children’s mother’s parenting capacity in addition to concerns related to the safety of the Children while in their mother’s care.

30The Applicant’s Affidavit dated May 17, 2021 addresses the Respondent’s concerns with his parenting, including the Applicant’s use of discipline. The Affidavit by JM (Child Protection Worker) dated March 25, 2021 addresses the Respondent’s reasons for requesting a protection application based on the need for the Children to be protected, as well as access to the Applicant. The Affidavit cites adult conflict, excessive physical discipline, and neglect as the basis for the Application. The Affidavit recounts the Respondent’s history with the Applicant and the Children’s mother including: concerns related to the Applicant’s parenting skills; a lack of routine; in appropriate use of physical discipline; allegations of physical injuries; inappropriate expectations of the Children based on age; fears that the Children’s medical needs would not be met; neglect; the mother’s cognitive delay; concerns with the Applicant’s brother; exposure to adult conflict; lack of school attendance; and the requirement for supervision of access between the Applicant and the Children.

31Based on the documents presented by the Respondent, I find that the subject matter of the Applicant’s Issue/Concern 1 are issues which have been placed directly before the Court. As such, the CFSRB does not have jurisdiction to address this issue.

32I considered whether the issues related to the Applicant’s involvement with his ex- partner’s support person (the Applicant’s brother MC) (Issue/Concern 2) were issues before the Court. I note that, the Applicant admits in his Application that this allegation is: “heavily supported by the Society’s Court affidavit in a separate court file that is attached. They are concerned he is a support to my ex and I am the cause of the breakdown in the support network but their Affidavit is HIGHLY concerning and proves my concerns of his involvement at this time”.

33By his own admission, the Respondent has submitted an Affidavit addressing its concerns with the Applicant’s involvement in the issue in separate proceedings. The Applicant addresses his concerns with his brother as well as his concerns related to access to his nephew in several documents submitted to the Court. For example, the Affidavit dated July 26, 2021 addresses the role that the Applicant has played in relation to access and custody of the Applicant’s nephew; the Respondent’s concerns with the impact that the Applicant has had on the home life of his nephew; concerns regarding the Applicant’s use of physical discipline with his nephew; concerns regarding the Applicant’s adult conversations in front of his nephew; the Applicant defying the Respondent’s advice not to attend his nephew’s home when children were present; a safety plan that the Applicant not be in a caregiving role while at his nephew’s home; and exposure of children to adult violence.

34The Applicant’s Affidavit sworn on July 19, 2021 addresses his concerns regarding the dynamic between the Applicant and his brother, his brother’s control over the Children’s mother; and the impact of the interaction between the Applicant and his brother on the Children (paragraphs 32, 33, 58, 63, ).

35Issues related to the interaction between the Applicant and the Children’s mother’s support person (the Applicant’s brother) were also addressed in the Settlement Conference Brief dated July 20, 2021.

36It is clear from the Applicant’s statements in the Application, and the Respondent’s various Affidavits that issues related to the Applicant’s involvement in child protection matters involving his brother and nephew have been placed squarely before the Court. It will be up to the Court to make any findings based on the totality of the evidence before it. As such, the CFRSB does not have jurisdiction to address Issue/Concern 2 pursuant to section 120(8) of the Act.

37In Issue/Concern 3, the Applicant alleged that the Respondent failed to provide him answers to his inquires and failed to put answers in writing. I find that the Applicant has been provided with answers to the Respondent’s concerns in writing through Respondent staff Affidavits provided to the Court; Safety Plans; a Contract of Expectations signed with the Applicant on March 1, 2021; and a letter sent to the Applicant.

38The Contract of Expectations provided the Applicant with the Respondent’s expectations in writing which addressed the Respondent’s protection concerns related to adult conflict, excessive discipline; creating and maintaining consistent routines for the boys; school attendance; and following recommendations related to the medical care of the Children. This Contract was reviewed with the Applicant, the Worker, and her Manager. While the Applicant disagreed with its content and the process how he endorsed the Contract, he was provided with a contract in writing, and had an opportunity to have its content discussed by Respondent staff.

39In addition, the Applicant appended to his Affidavit sworn on July 19, 2021 a letter from the Respondent dated February 5, 2021 outlining the Respondent’s verification decisions and concerns, a Risk Assessment Map, and agreements by the Applicant with respect to the Children.

40For these reasons, I find that the Applicant has been provided with answers regarding his inquiries on multiple occasions and in multiple fora, including answers in writing. As such, the CFSRB does not have jurisdiction to review Issue/Concern 3 as per section 120(8) of the Act.

41In his Application, the Applicant indicated that he has requested new workers based on an alleged breakdown in the relationship with the family. The Respondent argued that the CFSRB does not have jurisdiction to address this issue.

42I concur, as the Applicant did not indicate how the provisions of section 120 (4)4 and 120(4)5 relate to this Issue/Concern. The Applicant did not indicate that he has made the request to the Respondent and that the Respondent has failed to hear his request or has failed to provide him reasons for its decisions related to request.

43I do note; however, that issues related to the cooperation between the Applicant and Respondent Workers have been raised in documents before the Court. For example, the Temporary Order Number FC-21-00000071-0000 addresses the need for the Applicant to cooperate with the Respondent at paragraph 1l. The Affidavit by JM, (Child Protection Worker) addresses the interaction between the Applicant and the 2 Workers cited in Concern/Issue 4 and refers to the fact that the Applicant disagrees with the Respondent’s worker’s observations and assessment related to physical discipline.

44The Applicant’s Affidavit sworn on July 19, 2021 addresses his concerns that the Respondent did not take his concerns seriously (paragraph 25) and that staff did not communicate with him (paragraph 26),

45As such, I find that the CFSRB does not have jurisdiction to address this issue pursuant to sections 120(4)4 and 120(4)5 of the Act as the issue has been brought prematurely before the CFSRB. Furthermore, I find that the interaction between the Applicant and the 2 staff members cited in the Application has been placed squarely before the Court.

46I considered whether any of the Issues/Concerns identified by the Applicant were separate and different from the substantive issues before the court. As outlined above, I found that all the Issues/Concerns in the Applicant addressed subjects that have been or are currently before the Court. As such I cannot find that the exception to section 120(8) in Children’s Aid Society of Waterloo v. DD applies to the Issues/Concerns identified by the Applicant.

DECISION

47For 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.

48The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

49Pursuant 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.