CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
UA
Applicant
-and-
Children’s Aid Society of Toronto
Respondent
DECISION
Adjudicator: Tamara Jordan
Date: March 05, 2024
Citation: 2024 CFSRB 23
Indexed As: UA v Children’s Aid Society of Toronto (CYFSA s.120)
Introduction
1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1 (the “Act”).
background
Application History: October 7, 2020 to February 1, 2021
2The Application was filed on October 7, 2020.
3A pre-hearing and mediation was held on November 12, 2020. The parties did not reach a settlement.
4A further pre-hearing was held on January 22, 2021. Following a discussion at that pre-hearing of the Applicant’s stated needs for accommodation due to disability, childcare obligations, and lack of reliable internet access, it was agreed that an in-person hearing would be appropriate. At that time, the CFSRB was not holding in-person hearings due to the COVID-19 pandemic.
Application History: May 2022 to December 2023
5In May 2022, when the CFSRB began to resume scheduling in-person hearings, the CFSRB contacted the parties to schedule the hearing in this Application.
The Applicant has Requested Four Adjournments
6The Applicant has requested four (4) adjournments since May 2022:
a. On May 16, 2022, the Applicant sent an email to the CFSRB in which she indicated that since the time of her Application she had new complaints and that she and the Respondent consented to this matter being placed on hold pending a possible private mediation (“Applicant’s May 2022 Email”). In the Applicant’s May 2022 Email, the Applicant also noted that a summer 2022 hearing would be difficult for her due to childcare issues and that she wished to secure legal representation. The Applicant requested a hearing in September, October or November 2022. The Respondent consented to the adjournment.
b. A case management teleconference was held on November 9, 2022 to address issues for the hearing and procedural matters. Near the beginning of the teleconference, the Applicant informed the CFSRB and the participants that she was feeling unwell due to several issues. In addition, the Applicant’s support person did not attend as expected. The Applicant sought an adjournment to a date after which further medical assessments would be completed and her housing stabilized. The case management teleconference was adjourned on the consent of the parties to January 2023.
c. A case management teleconference was held on January 11, 2023. The Applicant did not attend the teleconference and did not inform the CFRSB that she would not be there. Instead, a paralegal representative attended on behalf of the Applicant and requested an adjournment until June 2023. The paralegal representative stated that: the Applicant had further significant health concerns, including a new diagnosis following the last adjourned teleconference on November 9, 2022; the Applicant requires additional time to deal with her medical issues before proceeding with a teleconference; and that proceeding with the teleconference at this time may lead to a significant health issue for the Applicant. The Respondent was unopposed to the Applicant’s adjournment request. The parties agreed that they would provide dates to the CFSRB in May 2023 toward a further adjourned case management teleconference to be scheduled in June 2023.
d. Further to the CFSRB’s attempts to schedule a case management in June 2023, on June 13, 2023, the Applicant informed the CFSRB that she has some health issues and “cannot attend any case conference for the next 3 months”.
The Applicant’s Response to CFSRB Directions
7Between September 2022 and December 2023, the Applicant did not respond adequately or at all to several CFSRB Case Management Directions.
8Toward confirming the issues for the hearing, in its September 30, 2022 Case Management Direction (“September 2022 CMD”), the CFSRB directed the Applicant, on or before Friday, October 14, 2022, to file with the CFSRB, copying the Respondent:
a. a numbered list of issues that she wishes the CFSRB to hear, being mindful of the matters that the CFSRB is able to review and the limitations of the remedies the CFSRB may order at the conclusion of a hearing;
b. for each numbered issue in her list, the Applicant is to identify whether the issue is from her original Application, the Applicant’s November 2020 Email, or a new issue.
9The Applicant did not respond to the September 2022 CMD.
10In its January 12, 2023 Case Management Direction (“January 12, 2023 CMD”), the CFSRB directed the Applicant to complete and provide to the CFSRB an Accommodation Request Form. On January 27, 2023, the Applicant provided the CFSRB with an Accommodation Request Form on which she identified only that she would be having further medical testing and intervention and she was seeking a further adjournment to June 2023. The Applicant did not provide details relating to how the CFSRB could accommodate the Applicant during its proceedings toward advancing the Application.
11On May 18, 2023, the CFSRB emailed the Applicant and requested that she provide the CFSRB with an update about her availability to proceed with this matter. As the Applicant did not respond to this request, on June 7, 2023, the CFSRB issued further directions to the parties in a Case Management Direction. These included:
a. The CFSRB directed the parties to provide their availability for a one-hour case management teleconference between late June and in July, 2023; and
b. The CFSRB directed the Applicant to complete and provide to the CFSRB an updated Accommodation Request form by June 19, 2023 that provided as much information as possible related to her accommodation needs during case management teleconferences and in-person hearings.
12As the Applicant did not provide this information as directed by the CFSRB, on June 21, 2023, the CFSRB sent a letter by email and mail to the Applicant seeking specific information from the Applicant’s health professionals toward enabling the CFSRB to accommodate the Applicant and advance the Application (“June 21, 2023 Letter”). Neither the letter nor the email were returned as undelivered.
13As the Applicant did not respond to the June 21, 2023 Letter, on September 26, 2023, the CFSRB emailed the Applicant seeking confirmation of her mailing address and receipt of the June 21, 2023 Letter. On September 27, 2023, the Applicant responded to that email, confirmed that the mailing address on file at the CFSRB is correct, and requested the CFSRB “confirm the letter”. On September 27, 2023, the CFSRB resent its June 21, 2023 Letter to the Applicant.
14On October 12, 2023, the CFSRB sent a further Case Management Direction to the parties. Paragraph 10 of that Direction set out as follows:
As the CFSRB requires specific information from the Applicant’s health practitioners to enable it to provide appropriate accommodations for the Applicant at its proceedings, the CFSRB directs the Applicant to provide to the CFSRB by no later than November 21, 2023, the information sought by the CFSRB in its June 21, 2023 Letter. If the Applicant does not provide this information to the CFSRB by November 21, 2023, the Application may be dismissed as abandoned.
15On November 21, 2023, the Applicant emailed to the CFSRB a one-paragraph general note from her doctor (“November 2023 Note”) that did not answer the specific questions set out in the June 21, 2023 Letter. In the November 2023 Note, the Applicant’s Family Doctor states that the Applicant had self-reported she was awaiting a further assessment of some health issues and concludes that “it would be in [the Applicant’s] best interest to put her application on hold until further notice”.
16On December 19, 2023, the CFSRB provided further directions to the Applicant in its Case Management Direction on that date, including at paragraph 6 as follows:
As the CFSRB has: (1) requested several times that the Applicant provide specific information to enable it to accommodate the Applicant at its proceedings; (2) the Applicant has not provided the specific information required; and (3) the CFSRB cannot adjourn this matter indefinitely, the CFSRB directs the Applicant to provide to the CFSRB by no later than February 8, 2024, the specific information sought by the CFSRB in its June 21, 2023 Letter, including responses by the Applicant’s health professional(s) to all questions.
The Applicant’s Health Information Provided to the CFSRB in 2024
17On January 29, 2024, the Applicant’s Family Doctor provided a letter to the CFSRB (“January 2024 Letter”) in which she replied specifically to the questions in the CFSRB’s June 21, 2023 Letter. The Applicant’s Family Doctor stated that the Applicant had not provided her with the CFSRB’s June 21, 2023 Letter until January 29, 2024.
18The Applicant’s Family Doctor provides several assessments and recommendations in her January 2024 Letter. These include the following:
In response to the CFSRB’s inquiry regarding when the Applicant may be able to participate in a one to two-hour videoconference to confirm details for a hearing, the Applicant’s Family Doctor stated that “certainly a 1-2 hour interview would be too long” and she did “not know at this time when she will be able to participate but this would depend on the eventual treatment plan and her response to treatment”.
In response to the CFSRB’s inquiry regarding when the Applicant could participate in an in-person hearing, the Family doctor recommended “waiting a few months until [the Applicant’s] workup is completed and a treatment plan is in place”. The Applicant’s Family Doctor noted that given the health concerns, the hearing would “need to be done in a quiet, supportive, non confrontational environment”.
In response to the CFSRB’s inquiry regarding whether the Applicant may be able to provide written submissions for a hearing in writing, in the alternative to an in-person hearing, the Applicant’s Family Doctor indicated that the Applicant would prefer an in-person proceeding and that it may be easier for the Applicant to answer questions verbally rather than in writing. The Applicant’s Family Doctor suggested that if the matter proceeded by written submissions, that the Applicant “should be provided with questions in a format that would be easier to answer eg yes/no questions or short answer questions”.
analysis
19The CFSRB has adjourned this matter four times since May 2022 on the request of the Applicant.
20Since November 2022, the adjournments have specifically accommodated the Applicant’s request for time to address health issues and have medical assessments completed. There is no indication that any further assessments have taken place since November 2022 or that there are specific dates upon which these are scheduled to occur. If and when further medical assessments are completed, it remains unclear what the outcome of those assessments may mean for the Applicant’s ability to participate a pre-hearing, then hearing.
21Since September 2022, the Applicant has had difficulty responding to and following directions from the CFSRB. There is no indication that this pattern will change.
22The Applicant’s Family Doctor is unable to provide a date by which the Applicant could attend a one to two hour videoconference to prepare for a hearing and that this will “depend on the eventual treatment plan and [the Applicant’s] response to treatment”.
23The Applicant’s Family Doctor has also recommended “waiting a few months until [the Applicant’s] workup is completed and treatment plan is in place” before the Applicant may be able to consider participation in an in-person hearing.
24The Applicant’s Family Doctor noted several limitations on the Applicant’s ability at this time to engage in a written hearing, and a further pre-hearing is still required in any event to confirm issues for the hearing. An in-person hearing was established as the preferable format for this Application in January 2021 and the Applicant’s Family Doctor confirmed in January 2024 that this is still the Applicant’s preferred and most accessible manner of proceeding.
25This Application is part of a litigation process that necessarily involves a hearing. The Applicant commenced this process and has made several allegations against the Respondent. As part of any hearing, the Respondent has the right to question the Applicant in furtherance of its case, and in an in-person hearing, to challenge the Applicant’s evidence through cross-examination. It would be fundamentally unfair to the Respondent to impose that its questioning occur in a “quiet, supportive, non confrontational environment” as prescribed by the Applicant’s Family Doctor. The accommodation of the Applicant cannot be at the expense of fundamental unfairness to the Respondent in their right to cross-examine the Applicant at a hearing in a challenging manner.
26Given the Applicant’s history in this Application to date, including requests for several adjournments and her proven inability to follow directions of the CFSRB, the CFSRB must also consider the likelihood of additional time and resources being spent on providing repeat directions to and follow up with the Applicant without a foreseeable advancement of the Application.
27Finally, the CFSRB must consider the interests of the CFSRB and the Respondent to a timely resolution of disputes.
28The CFSRB appreciates that the Applicant may have health issues that require attention and support. However, the CFSRB must balance these issues and a further open adjournment with the above considerations.
29For these reasons, and after considering all the circumstances, the Application is dismissed.
order
30The Application is dismissed.
confidentiality order
31Pursuant 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.
Dated at Toronto, March 05, 2024.
Tamara Jordan
Tamara Jordan
Member