NMG v. Children’s Aid Society of Toronto, 2022 CFSRB 30

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

NMG Applicant

-and-

Children’s Aid Society of Toronto Respondent

DECISION

Adjudicator: Daniel McSweeney Date: June 27, 2022 Citation: 2022 CFSRB 30 Indexed As: NMG v Children’s Aid Society of Toronto (CYFSA s.120)

WRITTEN SUBMISSIONS

NMG, Applicant Self-Represented

Children’s Aid Society of Toronto, Respondent Chithika Withanage, 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 CFSRB found the Application eligible to proceed under sections 120(4)4 and 120(4)5 of the Act.

3The Applicant is the father of a son (the “Child”).

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

1. The Respondent has refused to consider the video evidence regarding the assault on the Applicant’s mother by the Applicant’s former partner;

2. The Applicant alleged that his child protection concerns related to the Child while in the care of his mother were not heard and/or were dismissed by Respondent staff;

3. The Applicant alleged that the Respondent has not heard his concerns regarding one staff member’s (HL) having been assigned to his case despite his previous complaints that she had threatened to have the Child removed;

4. The Applicant alleged that Respondent staff failed to hear his concerns and failed to consider his evidence regarding allegations of sexual abuse involving the Child’s mother since November 2020 and an incident in February of 2022;

5. The Applicant alleged that his concerns regarding the investigation of the alleged sexual abuse were not heard by the Respondent, including allegations of coaching by the Child’s mother; timing and secrecy surrounding interviews with the Child; disclosure of the outcome of the investigation;

6. The Applicant alleged that he was not heard and was not provided an explanation by a manager regarding the requirement for parental permission for a child to be interviewed; and

7. The Applicant alleged that he was not provided with reasons for the Respondent’s findings regarding the alleged sexual abuse, and for why the file had been closed; and staff have not responded to his inquiries on this issue.

5In its Summary Response, the Respondent indicated that the Applicant’s allegations of events that occurred prior to February 11, 2022, were not part of the subject matter of the Complaint as the Applicant clearly stated that the Complaint pertains only to the February 2022 investigation. In addition, the CFSRB did not have jurisdiction to determine issues pertaining to the Respondent’s employees.

6The Respondent argued that the CFSRB did not have jurisdiction to address issues which are before the Courts. For example, in February of 2022, the Court made findings of fact regarding the alleged protection concerns that form the basis of the Applicant’s Complaint to the CFSRB.

7Finally, the Respondent argued that the CFSRB had no jurisdiction to deal with administrative, substantive, or procedural matters that deal with how a society conducts itself, carries out child protection investigations, or makes decisions.

8For these reasons the Respondent argued that the CFSRB was exempt from reviewing the issues in the Complaint as these were issues that are within the purview of the Court. The Respondent submitted that the Application should be dismissed in its entirety.

9In a Case Management Direction (CMD) dated May 27, 2022, the CFSRB directed the parties to provide it with submissions and relevant Court documents in support of its argument that the subject matter of the original Application was before the Court.

10The Respondent submitted that the CFSRB is a legal body that is inferior to a Court and should not be able to unduly narrow or overturn a Court’s decision or to pre-empt a Court which is in the process of making a decision. As such, the CFSRB did not have the jurisdiction to address many of the Issues/Concerns in the Application as they were issues that were or are currently before the Court.

11In addition, the Respondent reiterated that the Applicant indicated that his Application related to the most recent file opened on February 11, 2022. As such, the complaints made about people and events that occurred prior to this date should not be part of the subject matter of the Application.

12The Respondent submitted that the Applicant’s complaints were not service-related and dealt with legal issues pertaining to the alleged risks to the child while in the care of his mother. This matter has been and remains before the Court.

13In addition, the CFSRB did not have the jurisdiction to overturn a verification decision related to the Board or to deal with complaints about individual staff members which fall under the Labour Relations Act, 1995.

14The Respondent finally submitted that the CFSRB does not have the jurisdiction to hold the Respondent accountable in terms of its administrative procedures as desired by the Applicant.

15The Applicant submitted that no issues in his Application that are or were before the Court: his concerns related to an alleged incident dated February 9, 2022, which post-dated the Interim Parenting Order of Justice Sharma of February 4, 2022. Therefore, the CFSRB has jurisdiction to address this issue.

16The Applicant submitted that he wanted the CFSRB to order the re-opening of the investigation into the February 9, 2022, incident based on his belief that the investigation was flawed. The Applicant objected to the closing of the file.

THE LAW

17Section 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

18The 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

19I considered the jurisdictional issues outlined by the parties.

20I considered whether or not the CFSRB had jurisdiction to review the Application pursuant to the exclusion in section 120(8) (a) of the Act which indicated that the CFSRB could not 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”.

21The Case Management Direction of May 27, 2022, asked the parties for their submissions on this subsection only.

22My 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.

23I had before me an Endorsement by Justice Mohan D. Sharma dated February 1, 2022, which addressed a variety of issues related to the access and custody of the Child. In addition, the Endorsement addressed the Applicant’s concerns with his ex-partner’s mental health; his concerns regarding physical, verbal and psychological abuse by his ex-partner; his concerns regarding inappropriate touching between the Child and his mother; CAST’s involvement with the family; and the Applicant’s concerns regarding the safety and well-being of his son. The Endorsement made findings on the Child’s mother’s willingness and ability to care for the Child; any risks to the Child while in his mother’s care; the alleged assault by the Child’s mother on the Applicant’s mother; physical and verbal abuse by the Child’s mother toward the Applicant; and parenting arrangements.

24Based on the documents before me, I find that issues related to access, custody, and the best interests of the Child have been and continue to be before the Courts as evidenced by Justice Sharma’s Endorsement. The Courts are tasked to decide what is in the Child’s best interests. This includes an assessment of any risks to the health and safety of the Child, including allegations of sexual abuse. Justice Sharma has made findings related to the Applicant’s past allegations of inappropriate touching between the Child and his mother, in addition to the ability of the mother to care for the Child. Given that the most recent allegations in the Applicant’s Application occurred after the Endorsement; and given that Justice Sharma has addressed these issues in the past, I find that the most appropriate forum for the Applicant to raise these issues is the Courts. The Courts have the benefit of hearing directly from all parties involved and can cross-examine witnesses; have access to the entire record; and have access to submissions from all parties. For these reasons I find that the CFSRB is precluded from addressing Issues/Concerns 2 and 4 as per the exemption in s. 120(8) of the Act.

25I also considered Issue/Concern 1 which dealt with the evidence regarding the alleged assault of the Applicant’s mother by his ex-partner. Justice Sharma’s endorsement addressed issues of violence, including an alleged assault on the Applicant’s mother. As such, the CFSRB cannot review this issue as it was an issue that was before the Court.

26Based on the evidence before me, I find that Issues/Concerns 1, 2, and 4 fall outside the CFSRB’s jurisdiction and therefore should be dismissed.

27I considered the remaining issues and submissions. I note that the Applicant was not asked, nor did he provide submissions on the remaining issues. Given that I have decided the remaining issues in the Applicant’s favour, I find that additional submissions from the Applicant were not required to ensure fairness.

28The Respondent argued that the Applicant’s current complaint focused on issues that took place on and after an incident dated February 11, 2022. The Applicant indicated the following in regard to the intent of his Application:

“The reason for the present complaint, though, pertains to the most recent file, opened on February 11, 2022.”

“The essence of my current complaint is that CAS have badly botched the investigation they carried out…”

29The Applicant did; however, identify other concerns in his Application (preamble) related to the service he received from the Respondent which pre-dated February 11, 2022.

30The Applicant was not asked whether his Application solely focused on issues that occurred after February 11, 2022. As such, I find that I cannot make a decision regarding the focus of the Application. The issue of the scope of the Applicant’s complaint is best decided at a pre-hearing or before a hearing. Any decision related to the span of the Application before February 11, 2022 will directly impact on Issue/Concern 3.

31In Issue 3, the Applicant was concerned with the assignment of a particular staff member to his file. The Respondent submitted that s. 120(8)(b) of the Act precluded the CFSRB from addressing any issues or decision-making processes subject to the Labour Relations Act, 1995 and that the Applicant’s concerns related to a particular staff member dealt with decision-making processes that were subject to the Labour Relations Act. I find that the Labour Relations Act focuses on the interaction between employers and employees related to trade unions and collective bargaining. As such, I find that the Applicant’s concerns related to the assignment of a particular staff member is not related to the provisions of the Labour Relations Act. As such, the CFSRB is not exempted from reviewing Issue/Concern 3 in the Application.

32I find that Issues/Concerns 3, 5, 6, and 7 deal with the Applicant’s allegations that he was not heard by Respondent staff. These issues relate to the service the Applicant received from the Respondent and therefore fall within section 120(4)4 of the Act.

33Issue/Concern 7 deals with the Applicant’s allegations that the Respondent has not provided the Applicant with reasons for its findings regarding the alleged sexual abuse and closure of the file. I find that this issue falls within section 120(4)5 of the Act. Allegations that he was not provided reasons for verification decisions are issues of service.

34For these reasons, I find that the CFSRB has the jurisdiction to address Issues/Concerns 3, 5, 6, and 7 of the Complaint and that these issues will move on in the next steps of the CFSRB process.

35I do concur; however, with the Respondent that the CFSRB does not have the jurisdiction under s. 120 of the Act to hold the Respondent accountable in terms of their administrative procedures; and to overturn the Respondent’s verification decision. The CFSRB’s jurisdiction in this case extends only to making a finding of whether the Applicant was heard or not; and whether the Applicant was provided with reasons related to decisions that affected his interests. The CFSRB cannot order the re-opening of the investigation as requested in the Applicant’s submissions.

36The Case Processing Officer will communicate with both parties regarding the next steps in the process.

DECISION

37For the reasons identified above, Issues/Concerns 1, 2, and 4 are dismissed as these are issues that were before the Court or are currently before the Court. The CFSRB does not have jurisdiction to address these Issues/Concerns pursuant to the exemption in section 120(8) of the Act.

38I find that Issues/Concerns 3, 4, 6, and 7 are service-related issues which can be assessed pursuant to section 120 of the Act.

CONFIDENTIALITY ORDER

39Pursuant 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.