KW v. Peel Children’s Aid Society, 2024 CFSRB 27

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

KW

Applicant

-and-

Peel Children’s Aid Society

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: March 08, 2024

Citation: 2024 CFSRB 27

Indexed As: KW v Peel Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

Peel Children’s Aid Society, Respondent

Tyler Coke 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 Applicant is the father of one son (the “Child”).

3The Applicant identified the following Issues/Concerns in his Complaint:

1. The Applicant alleges that the Respondent did not provide reasons why his family members were not considered as kin placements for the Child;
2. The Applicant alleged that Respondent staff did not allow the Child access to the Applicant;
3. The Applicant alleges that he was not provided with reasons as to why he was required to have supervised access with the Child; and
4. The Applicant alleged that he received notice of Court proceedings the day before Court and did not have time to prepare.

4In its Response to the Application, the Respondent argued that the CFSRB did not have jurisdiction to review the Complaint as the Issues/Concerns in it were wholly before the Ontario Court of Justice. The Respondent initiated a Child Protection Application in February of 2023. In response to the Child Protection Application, the Court is charged with reviewing custody; alternative plans of care; supervised access and contact; and service of all court material. Given this, the Respondent argued that the CFSRB did not have jurisdiction to review the Complaint pursuant to s. 120(8) of the Act. The Respondent asked that the Complaint be dismissed.

5The Respondent appended the following documents to its Response:

• Court Order of February 21, 2023
• Court Endorsement of April 26, 2023
• Court Endorsement of November 15, 2023
• Court Endorsement of December 20, 2023

6In a Case Management Direction dated February 9, 2024, the Applicant was directed to provide written submissions on whether the issues in the Complaint were separate and different from the substantive issues before the Court. The Applicant did not provide submissions by the deadline of February 23, 2024.

THE LAW

7Subsection 120(8) 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.

8The 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.

9The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or videoconference. Subsection 8.1 of the Rules state:

In deciding the format of a 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 the 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

10My determination focuses on whether the CFSRB has the jurisdiction to review the Applicant’s Complaint given the exclusion in s. 120(8).

11I considered the format of the hearing. I found that, based on CFSRB Rule 8.1 (above), the CFSRB has the authority to review a complaint in writing. Given the lack of submissions by the Applicant, and given the documentation provided by the Respondent, I found that a review of the Complaint in writing would be the most efficient and expeditious approach to this matter. Additional oral evidence from the Applicant was not required as the disposition of the Complaint focuses on the narrow issue of the CFSRB’s jurisdiction to review the Complaint pursuant to s. 120(8) of the Act.

12My 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.

13In this case, the Court issued a Temporary Order which addressed issues related to the temporary custody of the Child. The Order also set out the Applicant’s right to supervised access at the discretion of the Respondent.

14I concur with the Respondent that child protection proceedings deal with issues of custody, access, and provide the parties with an opportunity to provide evidence and testimony related to alternative plans of care. I note that the Applicant has been in default in relation to subsequent proceedings. If he chooses to attend Court, the Applicant will have an opportunity to raise his concerns related to custody and access of the Child, including plans for the Child’s placement with kin, and his access to the Child. The Court will then decide these issues based on a consideration of the best interests of the child.

15The Applicant has not provided submissions regarding whether the Issues/Concerns in his Complaint were separate and different from the substantive issues before the Court.

16Given that the Applicant and Respondent continue to be before the Court, I find that issues of custody and access cannot be reviewed by the CFSRB as these are issues that will be decided by the Court as per s. 120(8) of the Act. I have no evidence or argument before me that any of the Applicant’s Issues/Concerns are separate and different than the issues before the Court. As such, Issues/Concerns 1 – 3 are dismissed for a lack of jurisdiction.

17I considered the Applicant’s concerns regarding notice of proceedings and service. Issues related to scheduling and notice regarding Court proceedings are the sole responsibility of the Court and are not the responsibility of the Respondent. As such, Issue 4 is dismissed as the CFSRB does not have jurisdiction to address this issue.

DECISION

18For the reasons identified above, I find that the CFSRB does not have jurisdiction to review the Applicant’s Complaint.

19The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

20Pursuant 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.