IK v. Children’s Aid Society of Stormont, Dundas & Glengarry, 2021 CFSRB 8

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

IK Applicant

-and-

Children’s Aid Society of Stormont, Dundas & Glengarry Respondent

ERK-W Applicant

-and-

Children’s Aid Society of Stormont, Dundas & Glengarry Respondent

VW Applicant

-and-

Children’s Aid Society of Stormont, Dundas & Glengarry Respondent

INTERIM DECISION

Adjudicator: Catherine Bickley Date: February 11, 2021 Citation: 2021 CFSRB 8 Indexed As: IK v Children’s Aid Society of Stormont, Dundas & Glengarry (CYFSA s.120) ERK-W v Children’s Aid Society of Stormont, Dundas & Glengarry (CYFSA s.120) VW v Children’s Aid Society of Stormont, Dundas & Glengarry (CYFSA s.120)

WRITTEN SUBMISSIONS

IK, Applicant Self-represented

EKW, Applicant Self-represented

VW, Applicant Self-represented

Children’s Aid Society of Stormont, Dundas & Glengarry, Respondent Melanie Verdone, Counsel

Introduction

1These are three Applications 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 CFSRB found all three Applications eligible under sections 120(4)4 and 120(4)5 of the Act and directed the Respondent to address section 120(8)(a) of the Act in its Responses to the Applications.

3The Respondent filed Responses on January 27, 2021 (CA21-0001 and CA21-0004) and February 8, 2021 (CA21-0011). In these Responses, the Respondent challenged the CFSRB’s jurisdiction to review the Application on the basis that the complaints “do not relate to any matters under s.120(4) of the Act] that are reviewable by the Board” and due to s.120(8)(a) of the Act.

4On January 28, 2021, the Applicants sent an email to the CFSRB commenting on the first two Responses.

the law

s.120(4) The following matters may be reviewed by the Board under this section:

1. Allegations that the society has refused to proceed with a complaint made by the complainant under section 119(1) as required under subsection 119(2).

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

4. Allegations that the society has failed to comply with section 15(2).

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

s.15(2) Service providers shall ensure 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;

Service is defined in s.2(1) to include:

(a) A service for a child with a developmental or physical disability or the child’s family,

(b) A mental health service for a child or the child’s family,

(c) A service related to residential care for a child,

(d) A service for a child who is or may be in need of protection or the child’s family,

(e) A service related to adoption for a child, the child’s family or others,

(f) Counselling for a child or the child’s family,

(g) A service for a child or the child’s family that is in the nature of support or prevention and that is provided in the community,

(h) A service or program for or on behalf of a young person for the purposes of the Youth Criminal Justice Act (Canada) or the Provincial Offences Act,or

(i) A prescribed service;

s.120(8)(a)

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.

Rule 21.2 of the CFSRB’s Rules of Procedures

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;

… the society must provide submissions in support of its position and attach “all relevant documents and any Court orders”.

background

5The Applications have been filed by three family members: IK, the mother (CA21-0001), ERK-W, the daughter (CA21-0004) and VW, the father (CA21-0011). Their complaints are almost identical. All deal with the family’s experiences in Germany (where ERK-W was apprehended by the local authorities), the involvement of the Respondent in ERK-W’s return to Canada and the family’s interactions with the Respondent thereafter.

analysis

The Applications are joined

6The three Applications are closely intertwined. They deal with the same set of facts with only minor variations. It would not be an efficient use of the Applicant’s or Respondent’s time or the CFSRB’s resources for the Applications to proceed separately. For these reasons the three Applications will proceed through the CFSRB process together.

The Applicants received services from the Respondent

7The Respondent submits the CFSRB lacks jurisdiction because the complaints:

• Relate to services provided by the Office for Youth and Family in Germany;

• Relate to services provided by Canadian officials in Ottawa and/or Germany;

• Relate to actions by police in Germany and Canada; and,

• Relate to Canada Revenue Agency services.

8This argument has no merit. The Respondent’s own Responses describe numerous situations in which the Respondent has provided a service to the Applicants, including the following:

• On June 5, 2019, a child protection worker from the Respondent travelled to Germany to accompany ERK-W back to Canada;

• The Respondent initiated a child protection proceeding and on June 10, 2019 a temporary without prejudice order placed ERK-W in the care of the Respondent with access to her parents left to the Respondent’s discretion;

• The Respondent developed a safety plan for ERK-W;

• IK and VW met with a child protection worker on July 16, August 15 and September 12, 2019; and,

• Respondent workers met multiple times with ERK-W.

9These interactions constitute services for a child “who is or may be in need of protection” and for “the child’s family” and thus fall within the definition of services in s.2(1)(d) of the Act.

Further submissions are required regarding s.120(8)(a)

10The Respondent also asserts the CFSRB lacks jurisdiction because the complaints relate to a court application. It relies on s.120(8)(a) which bars the CFSRB from reviewing an application where the subject of the complaint is before the court or has been decided by the court.

11In this case, there has been a court proceeding. The Respondent, however, has not provided relevant documents and court orders as required by Rule 21.2. Without this material the CFSRB is unable to determine whether it is barred by s.120(8)(a) from reviewing the Applications as a whole or from reviewing parts of the Applications.

next steps

12On or before February 22, 2021, the Respondent shall fulfil its obligations under Rule 21.2 of the CFSRB’s Rules of Procedures by providing the CFSRB and the Applicants with “all relevant documents and any Court orders”.

13If the Respondent wishes to make any written submissions regarding s.120(8)(a), beyond its submissions in the three Responses, it shall do so by February 22, 2021.

14If the Applicants wish to make any written submissions regarding s.120(8)(a), beyond the submissions in the January 28, 2021 email, they shall do so by March 2, 2021.

15In preparing their submissions, the parties may find it useful to review the decision of the Ontario Court of Appeal in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441. That decision may be accessed online at no cost by visiting the website (https://www.canlii.org) and searching the case name or the citation (2011 ONCA 441).

16The parties shall provide each other with copies of their submissions.

confidentiality order

17Pursuant 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 these Applications 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.