KG v Family and Children’s Services of Lanark, Leeds and Grenville, 2023 CFSRB 9

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

KG

Applicant

-and-

Family and Children’s Services of Lanark, Leeds and Grenville

Respondent

DECISION

Adjudicator: Tamara Jordan

Date: February 15, 2023

Citation: 2023 CFSRB 9

Indexed As: KG v Family and Children’s Services of Lanark, Leeds and Grenville (CYFSA s.120)

WRITTEN SUBMISSIONS

K.G., Applicant

Self-represented

Family and Children’s Services of Lanark, Leeds and Grenville, Respondent

Ben Ulster, Counsel

Introduction

1This is an Application 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 subsection 120(4)4 of the Act.

3A hearing in this matter is scheduled to proceed on February 22, 2023.

4As set out in the Pre-Hearing Report dated November 23, 2022 (“November 2022 PHR”), there were three issues for the hearing:

1. The Applicant alleges that his concerns regarding a conflict of interest with [NE] (Respondent Counsel) were not heard by the Respondent;

2. The Applicant alleges that his concerns regarding his daughter’s safety and well-being while in the care of her mother were not heard by Respondent staff; and

3. The Applicant alleges that his concerns that he was required to have supervised visits with his daughter were not heard by Respondent staff.

5On January 10, 2023, Counsel for the Respondent emailed the CFSRB and the Applicant attaching a copy of a Statement of Claim dated December 8, 2022 that the Applicant had served upon the Respondent and filed with the Ontario Superior Court of Justice (“Statement of Claim”).

6In its January 10, 2023 email, Counsel for the Respondent submits that “the subject of the [Statement of Claim] pertains to the same issue(s) that [the Applicant] has raised in [his] CFSRB Application”. The Respondent submits that the CFSRB does not have jurisdiction to review the Application and seeks that the Application be dismissed pursuant to s.120(8)(a) of the Act, or in the alternative, that the hearing in the Application be adjourned while the Applicant’s civil action remains active before the Ontario Superior Court of Justice.

7In its Case Management Direction dated January 16, 2023 the CFSRB directed the Applicant to provide written submissions to the CFSRB on or before January 30, 2023 explaining which, if any, part of his CFSRB Application is not before the court. The Applicant did not provide any written submissions.

8In the absence of written submissions from the Applicant, I have considered the written submissions of the Respondent in its email to the CFSRB on January 10, 2023 and the contents of the Statement of Claim in reaching a decision on the CFSRB’s jurisdiction to hear the three issues identified in the November 22, 2022 PHR.

9For the reasons described below, I find that the CFSRB does not have jurisdiction to hear Issues 1 and 3 in the Application as they are issues before the court and therefore must be dismissed. However, I find that Issue 2 is not before the court, within the CFSRB’s jurisdiction, and may proceed to a hearing.

THE LAW

10Section 120(8)(a) of the Act states:

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;

analysis

11The Respondent submits that the subject of the Statement of Claim “pertains to the same issue(s)” that the Applicant has raised in his CFSRB Application and provides the Statement of Claim to support its submission.

12The Court of Appeal for Ontario ruled in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441 (at paragraph 35) that the mere existence of a court proceeding does not automatically bar the CFSRB from reviewing complaints about the services a person received from a children’s aid society if the complaints are “separate and different from the substantive issues before the court”.

13Below I consider each of the three issues before the CFSRB within the context of the Applicant’s allegations in the Statement of Claim before the Ontario Superior Court of Justice.

Issue 1: The Applicant alleges that his concerns regarding a conflict of interest with [NE] (Respondent Counsel) were not heard by the Respondent

14In the Statement of Claim, the Applicant names Respondent Counsel NE as a defendant, along with the Respondent Society. The Applicant claims damages from the defendants for their conduct.

15The Applicant makes several allegations against NE in the Statement of Claim that he made in his Application, including his concerns at paragraph 33 that NE was in “a conflict of interest”.

16The Applicant’s concerns about receiving services from the Respondent while NE was “in a conflict of interest” is a substantive issue before the court. Accordingly, the CFSRB has no jurisdiction to hear Issue 1.

Issue 2: The Applicant alleges that his concerns regarding his daughter’s safety and well-being while in the care of her mother were not heard by Respondent staff

17There are no allegations in the Statement of Claim that relate to Issue 2.

18As there is no evidence that Issue 2 is before the court, this issue remains within the CFSRB’s jurisdiction to determine.

19Further, there is no reason to adjourn the hearing of this issue as there is no evidence that hearing it will have any bearing on any matters before the court.

Issue 3: The Applicant alleges that his concerns that he was required to have supervised visits with his daughter were not heard by Respondent staff

20In the Statement of Claim the Applicant makes several allegations about the Respondent’s restrictions of his access to his daughter. These include allegations at paragraph 23 that “he lost access to his daughter and was only allowed to see (sic) under supervised visits”, concerns at paragraph 30 that the Respondent “took [the Applicant’s] child away with no probable cause”, and at paragraph 34, that NE “and the CAS workers went out of their way to deny [the Applicant] access to his daughter”.

21The Applicant’s concerns about access with his daughter, including related to “supervised visits” and the harm he allegedly suffered as a result of the restrictions on his access are substantive allegations before the court. Accordingly, the CFSRB has no jurisdiction to hear Issue 3.

Conclusion

22For the above reasons, I conclude that the only issue over which the CFSRB has jurisdiction is the allegation in Issue 2 that the Applicant’s concerns regarding his daughter’s safety and well-being while in the care of her mother were not heard by Respondent staff. The allegations in Issues 1 and 3 must be dismissed pursuant to subsection 120(8)(a) of the Act as they are before the court in the Applicant’s civil matter against NE and the Respondent.

order

23The allegations in Issues 1 and 3 are dismissed.

24Issue 2, that the Applicant’s concerns regarding his daughter’s safety and well-being while in the care of her mother were not heard by Respondent staff, may proceed to a hearing on the merits.

confidentiality order

25Pursuant 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.