SF v Children’s Aid Society of the Region of Peel, 2022 CFSRB 61

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SF Applicant

-and-

Children’s Aid Society of the Region of Peel Respondent

DECISION

Adjudicator: Daniel McSweeney Date: December 08, 2022 Citation: 2022 CFSRB 61 Indexed As: SF v Children’s Aid Society of the Region of Peel (CYFSA s.120)

WRITTEN SUBMISSIONS

Children’s Aid Society of the Region of Peel Mario Elchami, 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 section 120(4)5 of the Act: It is alleged that the Society has failed to provide the Applicant with reasons for a decision that affects her interests.

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

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

1. The Applicant alleged that the Respondent has failed to provide him with reasons for cancelling and/or denying him access time with the Child; and

2. The Applicant alleged he was not provided with reasons as to why the Child was taken away from him by Respondent Worker CM.

5In its Summary Response to the CFSRB Complaint, the Respondent argued that it has made efforts to provide the Applicant with reasons that access has been cancelled; however, the Applicant has not permitted the conversations to occur as he has responded with aggressive and derogatory language and has made threats against Respondent staff.

6The Respondent commenced child protection proceedings against the Applicant in November of 2021. The Respondent argued that the issues of access/parenting time and the Applicant’s impeded access to the Child is wholly before the Court. As such the CFSRB did not have jurisdiction to review the matter pursuant to s. 120(8) of the Act.

7In a Case Management Direction (CMD) dated November 8, 2022, I directed both parties to provide written submissions on the format of the hearing. I also directed the Applicant to provide written submissions as to whether the Issues/Concerns in his Complaint are issues that have been or are currently before the Court.

8The Applicant did not provide submissions.

9The Respondent submitted that it would not permit any of its employees to attend in-person or virtual meetings with the Applicant unless the CFSRB could guarantee the physical and psychological safety of those in attendance. The Respondent argued that the Applicant has shown a lengthy, persistent, and progressive period of harassment causing distress to staff. The Respondent has reported the behaviour to police and is seeking a court order pursuant to 2. 137(1) of the Act restraining the Applicant from contacting the Society and any of its employees except through counsel. The Respondent has also sought an order for all future Court appearances to be conducted virtually.

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 existence of child protection proceedings does not bar the CFSRB from reviewing complaints about services received from a children’s aid society if the complaints are separate and different from the substantive issues before the court.

12Rule 8.1 of the CFSRB Rules of Procedure indicates that the CVSRB may conduct hearings orally, in writing, or electronically by teleconference or video-conference. In deciding the format of the hearing, the CFSRB will consider:

a) whether it is a fair and accessible process for the parties

b) the costs and efficiency of the process

c) the potential for a more expeditious resolution

d) the convenience of the parties

e) the consistency with the CFSRB’s mandate

f) whether facts or evidence may be agreed upon

g) the estimated duration of the hearing

h) whether the issues for hearing are predominantly legal issues

i) whether oral testimony is likely to be needed

j) any objections to the format of the hearing

ANALYSIS

13I considered the format of the hearing. Given the lack of submissions by the Applicant; and given that the Respondent’s evidence of a pattern of escalating behaviour, including his threatening behaviours towards Respondent staff, I find that proceeding in writing would be the most effective and appropriate approach to reviewing this matter. Given the Applicant’s track record (as per the Summary Reply), I cannot ensure the safety of Respondent staff.

14In addition, the Complaint deals with the narrow jurisdictional issue of whether the Issues/Concerns in the Complaint were issues that were before the Court. The Applicant was provided with an opportunity to provide submissions on this issue. In choosing not to provide submissions, the Applicant waived his right to be heard further on this issue.

15Given the Respondent’s Summary Reply, and the documents appended to it, I find that I have sufficient information before me to decide the matter without requiring any additional oral evidence. I also find that reviewing the Complaint in writing is the most efficient use of resources.

16For the reasons identified above, I find that the Complaint would best be reviewed in writing.

17I turned my mind to whether the CFSRB is precluded from addressing the Issues/Concerns in the Complaint as they were issues that were or are currently before the Court.

18My reading of section 120(8) 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.

19The Respondent provided the following documents along with its Summary Response:

• Endorsement of Justice A.W.J. Sullivan, June 30, 2022

• Notice of Motion, March 1, 2022

• Endorsement of Justice A.W.J Sullivan, August 31, 2022

20I note that the Respondent initiated Child Protection Proceedings against the Applicant in November of 2021. Justice A.W.J. Sullivan is case managing the matter and the matter returned to Court on November 16, 2022.

21The Respondent argued that the issue of the Applicant’s aggressive and threatening behaviour and its impact on access to the Child is before the Court. In addition, the Court has before it evidence of the Applicant’s inability or unwillingness to hear reasons for decisions that affect his interests. This issue was the subject of a hearing and Order by Justice Sullivan made on June 30, 2022. The Order provided for the Applicant’s access to be at the Respondent’s discretion with a minimum frequency of twice per week.

22Paragraph s 16 and 17 of the Endorsement of June 30, 2022, clearly identified the reasons for the apprehension of the Child as domestic conflict and assault between the parents, as well as ongoing threats of Respondent staff and the maternal grandparents. The same Endorsement addressed the Applicant’s concerns that the Respondent caused him not to have access with the Child in the Fall of 2021. Paragraph 20 indicated that the judge in the domestic file suspended the Applicant’s access due to breaches and ongoing conflict. Paragraph 22 explained the reasons that Respondent staff suspended supervised access.

23Based on the documents before me, I find that the Court has addressed the reasons for the apprehension of the Child from her parents as well as the ongoing issues related to the Applicant’s access.

24I note that s. 74(2) of the Act identifies the criteria for determining that a child is in need of protection. The criteria include physical, emotional harm, neglect, sexual abuse, failure to provide treatment to a child or meet her/his developmental needs. Section 74(3) sets out the best interests of the child criteria which decision-makers uses in making decisions around the placement of children.

25In this case, the Applicant and Respondent have been before the Court in child protection proceedings. Based on the criteria in s. 74 which directs decision-makers to consider the best interests of the child; and based on the finding that the Child was in need of protection, I find that issues related to access, custody, the health and well-being and best interests of the Child were placed squarely before the Court and were considered by Justice Sullivan in various Orders. The reasons for the Child’s apprehension and access concerns formed the subject matter of the Applicant’s Complaint.

26I considered whether any of the Issues/Concerns in the Complaint were separate and distinct from the issues presented at Court. While the Court gave discretion to the Respondent related to access; the Applicant’s escalating behaviour and its impact on access arrangements with the Respondent have been raised before the Court. As such, I find that the discretion the Court afforded the Respondent in relation to access was an issue that was before the Court.

DECISION

27For the reasons identified above, I find that Issues/Concerns in the Complaint are issues that were placed squarely before the Court. As such, the CFSRB is precluded from addressing these Issues/Concerns pursuant to s. 120(8) of the Act. These Complaint is therefore dismissed.

CONFIDENTIALITY ORDER

28Pursuant 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.