MP v. Ogwadeni:deo, 2023 CFSRB 8

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MP Applicant

-and-

Ogwadeni:deo Respondent

DECISION

Adjudicator: Daniel McSweeney Date: February 14, 2023 Citation: 2023 CFSRB 8 Indexed As: MP v Ogwadeni:deo (CYFSA s.120)

WRITTEN SUBMISSIONS

Ogwadeni:deo, Respondent Birkin J. Culp, 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 affects his interests.

3The Applicant is the father of 2 children (the “Children”).

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

1. The Applicant alleges that he was not heard by Respondent staff in relation to the temporary placement of the Children with their maternal grandmother; the return of the Children to their mother; the apprehension of the Children in October 2021; the investigation of allegations against him related to an access visit on April 15 – 17, 2022; and concerns regarding various access arrangements in the Summer and Fall of 2022; and

2. The Applicant alleges that he was not provided answers by Respondent staff to his questions regarding access to the Children; the placement of the Children with their maternal grandmother; Respondent staff’s failure to answer the Applicant’s questions regarding access; and why Respondent staff have ignored the Applicant and his lawyer.

5In its Summary Response to the CFSRB Complaint, the Respondent argued that the CFSRB did not have jurisdiction to address the Issues/Concerns (including access issues) in the Complaint as these issues have been before the Court in Child Protection proceedings.

6The Respondent further indicated that the Applicant was not identified as the father of the Children until the Fall of 2021, which was well after the Respondent began its involvement with the family in March of 2021. After making contact with the Applicant, the Respondent in late November 2021, the Respondent served him with the Protection Application and the Application was amended to add his name to the style of cause. Since then, the Applicant has been involved in all Court proceedings.

7The Applicant’s access was suspended after the Easter visit as one of the Children reported being disciplined with a belt and the other reported being shown a firearm which was not stored securely. These concerns were disclosed to the Applicant’s Counsel on May 6, 2022. The Respondent reported that the Applicant has refused to meet with the Worker to discuss the allegations and has refused to provide his working telephone number to resolve access issues.

8The Respondent indicated that the Applicant’s access to the Children was subject to proceedings before the Ontario Court of Justice and were scheduled for a Trial Management Conference on December 1, 2022. The Applicant’s access to the Children was addressed during these proceedings.

9In a Case Management Direction (CMD) dated November 25, 2022, the Respondent was directed to provide copies of all relevant Court documents to the CFSRB and the Applicant. The Applicant was also directed to make written submissions to the CFSRB on whether the issues in the Complaint were separate and different from the substantive issues before the Court. Both the Applicant and the Respondent failed to meet the deadlines identified in the CMD. Another CMD was issues on January 17, 2023, with the same orders. The Applicant did not provide submissions. The Respondent provided the following documents:

• DRAFT Order of Justice K.A. Baker dated August 9, 2022
• Endorsement of Justice K.A. Baker dated August, 2022
• Draft order of Justice K.A. Baker dated May 20, 2022
• Endorsement of K.A. Baker dated May 20, 2022
• Trial Management Endorsement Form dated December 1, 2022

10I note that the Applicant’s Complaint included a hand-written version of the Temporary Care and Custody Order dated August 9, 2022.

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 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.

ANALYSIS

13I considered 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.

14My 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.

15I reviewed the Court documents submitted to the CFSRB (see above).

16These documents reveal that issues related to the custody of the Children have been addressed by the Court. The Court is directed to consider the best interests of the child in its custody and access decisions. This includes an assessment of the health, safety and wellbeing of children in relation to any proposed custody or access arrangements. Given this, I find that the Applicant’s concerns with the health and safety of the Children while in the custody of their maternal grandmother and the expectations of the Applicant during access visits were issues that were before the Court (Temporary Court Order of August 9, 2022). As such, the CFSRB does not have the jurisdiction to review these issues based on the exemption in section 120(8) of the Act.

17I considered the Applicant’s concerns that he was not informed about issues of custody and access of the Children before November of 2021. The Respondent has explained that the Applicant was not identified as the father of the Children until November of 2021 after which he was added as a party to all Court Proceedings. I note that issues related to custody and access continued before the Court after the Applicant was identified as a party. As such, I find that he and his Counsel had the opportunity to raise any of their concerns regarding custody and access with the Court.

18I considered the Applicant’s Issues/Concerns related to access. I note that the Court has been and remains interested in the issue of access between the Applicant and the Children. In addition, the Court had before it information regarding the Respondent’s supervision and discretion regarding access. For example, the Court considered and ruled upon access dates, pick-up and drop-off provisions, and the method of communication between the Applicant and the Respondent in relation to access (Temporary Custody Order, August 9, 2022). As such, I find that the CFSRB is precluded from addressing any issues related to access as these are squarely before the Court.

19I note that issues related to the safety of the Children while in the care of their father (allegations of corporal punishment; unsafe storage of firearms) were addressed by the Court as evidenced by the Temporary Order dated May 20, 2022. The Endorsement of December 1, 2022, indicated that the Applicant received disclosure from the Respondent in relation to a current Protection Application. I find that the Respondent’s concerns with the Applicant’s behaviour during an access visit on Easter of 2021 is before the Court. As such, the CFSRB does not have the jurisdiction to address these issues.

DECISION

20For the reasons identified above, I find that all the 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. The Complaint is therefore dismissed.

CONFIDENTIALITY ORDER

21Pursuant 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.