MS v. Children’s Aid Society of Ottawa, 2022 CFSRB 5

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MS Applicant

-and-

Children’s Aid Society of Ottawa Respondent

DECISION

Adjudicator: Daniel McSweeney Date: January 31, 2022 Citation: 2022 CFSRB 5 Indexed As: MS v Children’s Aid Society of Ottawa (CYFSA s.120)

WRITTEN SUBMISSIONS

MS, Applicant Unrepresented

Children’s Aid Society of Ottawa, 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)5 of the Act. It is alleged that the Society has failed to provide the Applicant with reasons for a decision that affected his interests.

3The Applicant is the biological father of one son (the “Child”) and is a party to current child protection proceedings involving the Child.

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

1. The Applicant alleges that the Respondent failed to provide him with an answer regarding a complaint that he submitted regarding JV, a worker of the Respondent, and her supervisor KY, in which he alleged that JV allegedly lied and omitted information in regards to a Status Review Application;
2. The Applicant alleges that the flawed investigation by the Respondent has put the Child at risk; and
3. The Applicant alleges that his concerns regarding the Child’s mental health and ongoing planning to support his mental health; the Child’s schooling; the Child’s health (allergies); the risk of physical discipline to the Child from MJ; the current custody arrangements for the Child; and the Applicant’s access to the Child were not heard by the Respondent.

5In its Summary Response the Respondent argued that, through the Complaint, the Applicant was asking the CFSRB to review issues that are before the Court. Many of the issues will be addressed in a multi-day trial set for 2022. The CFSRB is precluded from reviewing such issues pursuant to s. 120(8)(a) of the Act. In the alternative, the Respondent argued that it had provided the Applicant with reasons for its decisions; however, the Applicant disagrees with the reasons and the decisions made.

6In a Case Management Direction (CMD) dated January 11, 2022, parties were directed to provide submissions on the issue of jurisdiction.

7In its response to the CMD, the Respondent argued that the Applicant was seeking to use the CFSRB to litigate his difference of opinion with the clinical decisions made in his file. The forum for a debate of these issues is in the Court where a judge can provide the remedy that the Applicant is seeking. The matter is set for a Settlement Conference on March 8, 2022. For these reasons the CFSRB is precluded form addressing the Complaint as the issues identified in the Complaint were before the Court or are currently before the Court.

8The Applicant argued that the Respondent failed to provide him a response to his concerns regarding the investigation of Worker JV; and failed to provide him with answers to his concerns regarding the regarding the health and safety of the Child. The Applicant indicated that the Respondent’s position in Court has been to terminate the Protection Application despite ongoing reports of concerns related to the Child’s physical and mental health, schooling, speech delay and physical safety.

9The Applicant disagrees with the Respondent’s argument that the CRSRB does not have jurisdiction to review the complaint. The Applicant indicated that the issues before the Court relate to the Child’s best interests and the issues in the complaint relate to the manner in which the Respondent has exercised its mandated responsibilities which is within the CFSRB’s jurisdiction.

10The Applicant argued that the issues in his Complaint are not before the Court and have not been decided by the Court. The Applicant’s focus is on issues that he has experienced with the Respondent.

THE LAW

11Section 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

12The 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

13I considered the jurisdictional issues associated with the Complaint.

14Section 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”.

15My 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.

16I had before me the following documents provided by the Applicant and the Respondent:

• Affidavit from Respondent Worker JV, 30 June 2021
• Answer and Plan of Care, July 14, 2021
• Child Protection Application, September 14, 2012
• Settlement Conference Brief, October 14, 2021
• Status Review Application, October 15, 2021
• Answer and Plan of Care, January 10, 2022

17The Applicant indicated in his submissions that his Answer and Plan of Care dated July 14, 202 addressed inconsistencies between JV’s sworn statement and what actually happened. The Settlement Conference Brief dated October 15, 2021, indicated that JV’s testimony is inconsistent with the facts and that the Respondent’s actions are based on erroneous information.

18The Status Review Application dated October 15, 2021, outlined the Applicant’s concerns regarding alleged lies in the Worker’s investigation.

19It is clear that the Applicant’s concerns regarding JV’s evidence and testimony are issues that are and have been before the Court. It will be up to the Court to assess and place weight on JV’s evidence and testimony. As such, I find that the issue of whether JV lied in the Status Review Application was placed squarely before the Court and therefore the CFSRB does not have jurisdiction to address Issue 1 in the Complaint.

20Issue 2 deals with the Applicant’s allegations related to a flawed investigation which he argued placed the Child at risk. The Status Review Application dated October 15, 2021, addresses the Applicant’s concerns regarding the alleged flawed investigation performed by Respondent staff and its findings that there are no current child protection issues.

21It is up to the Court to determine what is in the Child’s best interests. Part of this assessment is for the judge to examine the Respondent’s evidence and findings regarding child protection concerns. Given this and given that the Applicant has had an opportunity to provide his own evidence and argument to the Court related to the Respondent’s child protection findings, I find that Issue 2 has been and continues to be before the Court.

22Issue 3 relates to the Applicant’s concerns regarding the physical and mental health of the Child; the Child’s safety; the Child’s schooling; and custody and access. The Settlement Conference Brief addresses the child protection concerns related to the Child’s mother and step-father. It comments on the home environment; the Child’s attendance at school; discipline used in the home; and the Child’s health needs; concerns related to the Child’s failure to attend speech therapy; and his failure to gain weight. The Brief comments on the access and custody decisions in a Court Order of February 2, 2021; and the Applicant’s request for a further supervision order. The Status Review Application dated October 15, 2021, addressed the Applicant’s concerns regarding the physical and mental health of the Child; access to speech therapy; access to medical care; and discipline in the home. These issues continue to be before the Court and will be addressed at a Settlement Conference scheduled for March 8, 2022.

23For these reasons I find that Issues/Concern 3 are and continue to be before the Court. The CFSRB does not have jurisdiction to address these concerns.

SUMMARY AND DECISION

24The evidence before me is that the Applicant has been involved in all the Court processes to date. He has been able to express his concerns regarding the Respondent’s staff; as well as his concerns with the Respondent’s decision that there are no longer any child protection issues associated with the Child’s mother. The Applicant and the Respondent continue to work through the issues identified by the Applicant as evidenced by the Settlement Conference scheduled for March 8, 2022. As such, I find that the Applicant has had and continues to have an opportunity to present his concerns to the Court related to the Respondent’s position and their evidence in support of this position. It is the responsibility of the Court to make findings of fact and to decide what will be in the best interests of the Child.

25As such, the CFSRB does not have jurisdiction to address all 3 issues outlined in the Complaint, as these issues were and continue to be before the Court.

26The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

27Pursuant 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.