WZ v. York Region Children’s Aid Society, 2023 CFSRB 70

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

WZ Applicant

-and-

York Region Children’s Aid Society Respondent

DECISION

Adjudicator: Daniel McSweeney Date: August 17, 2023 Citation: 2023 CFSRB 70 Indexed As: WZ v York Region Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

WZ, Applicant Self-represented

York Region Children Aid Society, Respondent Nancy H. Guatto, 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 Complaint eligible to proceed under 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 is receiving; and 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 father of a son (the “Child”).

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

1. The Applicant alleges that Respondent staff failed to hear his concerns about the whereabouts of the Child during a telephone conversation on June 15, 2023;

2. The Applicant alleges that Respondent staff failed to provide him with answers to his questions: why the Child was not at school; did the Child’s maternal grandmother have access to him; and refused to provide him with a reason when he alleges that Respondent staff knew why the Child was not at school;

3. The Applicant alleges that Respondent staff did not hear his concerns regarding their fabrication of an allegation that he had breached the safety plan for the Child as the Child had been in the presence of the Applicant’s current partner; and that he had mistreated his ex-partner; and

4. The Applicant alleges that Respondent staff failed to provide him with reasons for its decision to return to the previous temporary access order.

5In its Summary Response to the CFSRB Complaint, the Respondent argued that the complaints and allegations in the Compliant are matters that are currently before the Court or have been decided by the Court. As such, the Complaint should be excluded from review as the CFSRB does not have jurisdiction to address these issues. The Respondent did not provide documents in support of its position pursuant to Rule 21.2 of the CFSRB Rules of Procedure.

6In addition, the Respondent argued that Respondent staff have heard and investigated the Applicant’s concerns. Staff have provided the Applicant with reasons for decisions that have been made; however, some details have not been shared with the Applicant pursuant to the privacy provisions in Section X of the Act.

7On July 13, 2023, the CFSRB issued a Case Management Direction directing the Respondent to provide copies of documents in support of the argument that the issues in the Complaint were issues before the Court as per the CFSRB Rule. In addition, the Applicant was directed to make written submissions on whether the issues in the Complaint were separate and different from issues before the Court. The Respondent was informed that it could provide a reply on or before August 10, 2023.

8On August 3, 2023, the Applicant submitted that his complaint focused on the professional misconduct of a Respondent Worker and did not relate to the ex-parte motion filed and case conference documents presented by the Respondent in support of its s. 120(8) argument. The ex-parte motion documents briefly discuss the Applicant’s interactions with the Respondent; however, they were not the focal point of the motion and were not the subject of any decisions made by the Court in relation to the Applicant’s concerns of professional misconduct.

9The Respondent provided the CFSRB with the following documents:

• Court Endorsement dated May 29, 2023

• Court Endorsement dated June 13, 2023

• Temporary Order dated June 13, 2023

10In its submissions of July 20, 2023, the Respondent requested a 1-day extension to provide its reply given that Counsel was away from the office until August 9, 2023. The CFSRB did not respond to the request.

11The Respondent submitted a reply on August 11, 2023. The Applicant objected to the late submission and asked that the response be dismissed. The Applicant indicated that he did not receive an e-mail from the CFSRB consenting to the extension and he asked the CFSRB to confirm that an extension was granted.

THE LAW

12Section 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

13Rule 21.2 in the CFSRB Rules of Procedure indicates:

Where the society take 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 their response.

14The 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.

15Rule 3.2 in the CFSRB Rules of Procedure states that: “The CFSRB may consider a request to extend the time for filing any document where there are exceptional circumstances. A request to extend time must provide reasons for the request.”

ANALYSIS

16I considered the Applicant’s request to dismiss the Respondent’s reply to his submissions.

17Given the CFSRB’s failure to formally acknowledge and respond to the 1-day extension request in the Respondent’s July 20, 2023, submissions to the CFSRB; given that Respondent Counsel was away from the office from July 20, 2023, until August 9, 2023, and given that the request was sent in writing on July 20, 2023, and clearly specified the reason for the extension request; I will allow the Respondent’s reply.

18I do note; however, that the reply focused on the merits of the Applicant’s allegations and the admissibility of recordings which were not germane to the issue of jurisdiction pursuant to s. 120(8) of the Act.

19I reviewed the Court documents submitted to the CFSRB (see above). I note that the Court documents were produced on May 29, 2023; and June 13, 2023, which pre-dated the issues highlighted in the Applicant’s Complaint. The Court documents dealt with issues related to custody, access, supervision, summer parenting time, and the Applicant’s concerns related to the Child’s mother’s behaviour and mental health.

20My 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.

21In this case, the Applicant’s complaint focused on service-related issues which engaged his right to be heard and his right to be provided reasons for Respondent decisions that affect his interests. For example, the Applicant alleges that he has been mistreated by a Respondent Worker based on her failure to hear his concerns related to the Child’s school attendance; her failure to provide him answers to his questions; his concerns that allegations against him have been fabricated; and the Worker’s failure to provide him with reasons regarding access arrangements. While the Court had evidence before it regarding the Applicant’s concerns regarding the Child’s mother’s hospitalization, it did not address whether the Applicant’s concerns with the Child’s access to the maternal grandmother were heard by Respondent staff.

22Given that the issues included in the Compliant occurred after the Court proceedings and were not the focus of the Court proceedings (custody and access); and given that they focused on the interaction between the Applicant and the Respondent Worker, I find that the CFSRB is not barred from reviewing these issues pursuant to s. 120(8) of the Act.

23I note that the Respondent addressed the issue of the admissibility of recordings of interactions between the Applicant and the Respondent Worker in its reply. It is premature for the CFSRB to address this issue as the next step in the process is to convene to discuss a possible mediated settlement between the parties. Should the matter move to a hearing, issues related to the admissibility of evidence can be addressed with the assigned member.

DECISION

24For the reasons identified above, I find that the Applicant’s Complaint can move forward in the review process given that its contents have not been placed before the Court; and would most likely not be addressed by the Court as it focuses on service-related issues.

25The parties will be contacted by the CFSRB to arrange next steps in the review process.

CONFIDENTIALITY ORDER

26Pursuant 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.