CITATION: The Children’s Aid Society of Waterloo v. D.D., 2010 ONSC 3328

COURT FILE NO.: 09-169JR

DATE: 2010-07-20

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: The Children’s Aid Society of Waterloo, Applicant

• v -

D.D., Respondent

BEFORE: Jennings, Wilton-Siegel, and Koke JJ.

COUNSEL: Cheryl Buehler, for the Applicant

J. Im, for the Child and Family Services Board

D.D., Self-Represented

HEARD: June 4, 2010

ENDORSEMENT

THE COURT

[1] The applicant, the Children’s Aid Society of the Regional Municipality of Waterloo (the “Society”), seeks an order quashing a written decision of the Child and Family Services Board (the “Board”) dated August 24, 2009 (the “Decision”) on the grounds that the Board lacked jurisdiction to conduct the review that is the subject of the Decision.

Background

The Child Protection Application

[2] On February 5, 2009, the Society apprehended the two children of the respondent, D.D. ─ R.G., age 13 and J.M., age ten months. The Society commenced a protection application under section 40 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended, (the “Act”) that was first returnable before the Ontario Court of Justice (the “Court”) on February 10, 2009.

[3] On that day, the respondent appeared and was represented by counsel. She did not advance any potential kin placements to the Court at that time. The Court made an interim order placing the children in the care of the Society. It also ordered that the respondent’s access to her children was to be subject to the Society’s supervision and at its discretion.

[4] The matter was heard again by the Court on March 11, April 15, April 22, May 8 and June 17, 2009. The interim order was extended on each such occasion until June 17, 2009. The respondent attended in court on each of these occasions and was represented by legal counsel. In addition, counsel from the Office of the Children’s Lawyer was appointed and represented the two children at the hearings on May 8 and June 17, 2009.

[5] A Temporary Care and Custody Hearing began on May 18, 2009 and was completed on June 17, 2009. On both dates, the issue of potential kin placements was the subject of submissions by counsel for the Society and the respondent. On June 17, 2009, [Lynch J.] ordered the return of the children to the respondent’s care subject to Society supervision.

The Board Review

[6] On May 25, 2009, the respondent filed a complaint with the Board pursuant to section 68.1 of the Act relating to the placement and treatment of her children while in the Society’s care.

[7] At a pre-hearing conference conducted by the Board on June 22, 2009, the respondent’s complaints were identified as follows:

1. the removal of her children and their placement in separate homes despite offers of relatives to have the children placed with them;

2. the lack of an opportunity to be heard and represented when decisions affecting her and her children were being made contrary to the requirements of clause 2(2)(a) of the Act;

3. the failure of the Society to provide the respondent with reasons for its decisions affecting her and her children;

4. the lack of information from the Society regarding the decisions made regarding the children’s placements; and

5. the failure of the Society to have regard to the children’s well-being as identified by her concerns in its decision-making.

[8] On July 22, 2009, the Society brought a motion challenging the Board’s jurisdiction to hear the complaint. Section 68.1(8)(a) of the Act states that the Board shall not conduct a review of a complaint under section 68.1 if the subject of the complaint is “an issue that has been decided by the court or is before the court”. On the motion, the Society argued that the complaints related to potential kin placements were outside the jurisdiction of the Board since February 10, 2009 because they had been before the court since that date.

[9] At the hearing, the respondent raised a further complaint pertaining to the Society’s refusal to approve a specific counselor selected by the respondent for domestic violence counseling. Individual counseling and domestic violence counseling for the respondent were terms of the order dated June 17, 2009 of [Lynch J.]

[10] After a brief recess, the Board issued oral reasons to the effect that it had jurisdiction over the issues raised in the respondent’s complaint including the further issue of counseling for the respondent. There is no transcribed record of these reasons.

[11] Following this oral decision, the hearing of the respondent’s complaint commenced on July 22, 2009 and continued on July 30, 2009.

[12] During the hearing, the respondent raised a further issue, being the Society’s decision-making with respect to access which, as mentioned, was the subject of an order of the Court dated February 10, 2009. The Board advised orally that, because the court order regarding access had been granted at the request of the Society in the exercise of its discretion, the Board concluded that it also had jurisdiction over the access issue as an element of its jurisdiction over issues relating to the Society’s discretion. The respondent also appears to have raised an additional issue regarding the Society’s refusal to allow the respondent’s counselor to provide counseling services to her daughter, R.G..

The Decision of the Board

[13] In the Decision, which was released on August 24, 2009, the Board concluded that it had jurisdiction to proceed with a complaint under the grounds set out in section 68.1(4)4 (allegations that the Society failed to comply with clause 2(2)(a) of the Act) and in section 68.1(4)5 (allegations that the Society failed to provide the respondent with reasons for a decision that affects the respondent’s interests). On the merits, the Board determined that the Society failed to provide the respondent with an opportunity to be heard or with reasons on a number of issues. It ordered the Society to provided detailed written reasons regarding its decisions respecting placement of the respondent’s children, access on the Easter weekend, proposed kin placement with the respondent’s aunt and mother, and certain other matters.

[14] With respect to the jurisdictional issue, the Board concluded that, if an issue pertaining to the Society’s decisions regarding the respondent and her children was not explicitly dealt with by a court, such issues, including her representations with respect to those decisions and the Society’s reasons for those decisions, are not issues “decided by or before a court” for the purposes of section 68.1(8)(a) of the Act. In doing so, the Board drew a distinction between decisions of substantive child protection, custody and access, which the Board acknowledges fall within the mandate of the courts, and issues pertaining to whether a child welfare agency has given due consideration to a parent’s participatory rights and interests in the process of the agency’s decision making and service delivery, which the Board says falls within its jurisdiction. The Board therefore envisaged concurrent jurisdiction arising out of the same facts under which the Court has jurisdiction for the substantive issues of child protection and the Board has jurisdiction over the procedural fairness of the Society’s decisions.

[15] The Board’s conclusion with regard to its jurisdiction is well expressed in the following excerpts from its decision:

In terms of helping to define the respective roles of Courts and the Board, it is important to look at the source of decision making under review. The Board’s role is with respect to Society’s decisions. Under section 68 and 68.1 of the Act, the Board has an oversight role with respect to Societies. The function of the Board is to ensure that the Society complied with its statutory obligations with respect to complaints and concerns about society services. With respect to s.68.1(4) 4 and 5, the function of the Board is to ensure that the Society complied with its obligations to listen to parents and to provide them with reasons for decisions affecting their interests. The function of the Board is not to review the decision of the Court. Where a decision is in the hands of the Court, the Board has no role. However, when a decision is in the hands of the Society, the Society has statutory obligations and the Board has a clear mandate over those obligations.

Wherever the Society has discretion because the matter is in the investigatory stages for example or here, where the Society has decision-making power delegated by the Court or statute, it is the Society that decides and is obliged to listen.

If the Board does not have the power to review the use of court delegated discretion by the Society with reference to the Society’s obligations, there will be no body vested with that authority and there will be no oversight over issues relating to communication with and treatment of parents when decisions are made.

In this regard, the Board finds that where the Society has the power to act as a decision maker even if that power is delegated by the Courts, the matter has not been decided by and is not before the Court. This is so because the Court has seen fit not to decide the issue and to trust in the Society to do so. The Society cannot circumvent its obligations to parents under the Act by saying that its delegated discretion to make decision does not require parents to be heard or provided with reasons for decisions.

Child Protection Proceedings

[16] The following statutory framework which governed the child protection proceedings in this case is relevant for the issue on this application.

[17] The Society apprehended the respondent’s children without a warrant under section 40(2) of the Act. If a child is admitted into the care of a children’s aid society without parental consent, section 46(1) of the Act requires the society to bring this matter before the court for a determination as to whether the child is in need of protection as defined in section 37(2) of the Act.

[18] At such hearing, the court was required to make an order under section 57(1) of the Act in the child’s best interests, as defined in section 37(3) of the Act. Section 57(1) requires that the court make one of four orders specified in that provision or an order under section 57.1 granting custody of the child to one or more persons, other than a foster parent. The Court initially made an interim order under section 57(1)2 placing the children in the care and custody of the Society. Subsequently, the Temporary Care and Custody Hearing resulted in an order under section 57(1)1 returning the children into the care and custody of the respondent, subject to the supervision of the Society.

[19] Of relevance for this application, section 57(4) of the Act requires that, in making any order to remove a child from the care of a person who had charge of the child before the intervention of the Society under the Act, the Court must consider whether it is possible to place the child with a relative, neighbor or other member of the child’s community or extended family under section 57(1). This provision required the Court in the present circumstances to consider kin placement options not only at the time of the initial child protection hearing but on each subsequent hearing at which the interim order was extended, as well as in connection with the order rendered on June 17, 2009 on the conclusion of the Temporary Care and Custody Hearing.

Issues:

[20] On this appeal the Court must address the following two issues:

1. what is the proper standard of review? and

2. did the Board err in finding that the subject of the respondent’s complaint was not before the court for the purposes of section 68.1(8)(a)?

[21] The Board has also raised the question of the validity of the Board’s decision to take jurisdiction with respect to matters that were not specifically the subject of the respondent’s complaint as identified in the pre-hearing conference on June 22, 2009 and therefore not specifically addressed in the submissions at the hearing on July 22, 2009. Given the determination of the foregoing issues, it is unnecessary to address this question and we decline to do so.

Standard of Review

[22] There is no jurisprudence on the degree of deference to be accorded the Board in regards to the interpretation and application of section 68.1(8)(a) of the Act. The Board submits that the standard of review should be reasonableness based on an application of the factors set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 at para. 64. The Society submits that this proceeding raises a pure issue of jurisdiction.

[23] We are mindful of the statement of the Supreme Court that courts should usually defer when a tribunal is interpreting its own statute and only exceptionally apply a correctness standard when interpretation of that statute raises a broad question of the tribunal’s authority: see Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678 at para. 34. Nevertheless, we are of the opinion that the circumstances of this case call for a correctness standard precisely because it does raise a broad question of the Board’s authority.

[24] The issue raised on this appeal is whether the Board has authority under the Act to address complaints pertaining to procedural fairness in respect of the decision-making, and the service delivery, by a children’s aid society in respect of matters arising out of child protection proceedings that are before a court ─ in this case the Ontario Court of Justice. The specific issue is whether the issues that gave rise to the respondent’s complaints were “before the court” for purposes of section 68.1(8)(a). The Society submits, as a general principle, that any matter that could be raised before the Court in a child protection proceeding must be regarded as “before the Court” for the purposes of section 68.1(8)(a) of the Act.

[25] Even though the subject-matter of the respondent’s complaint or complaints raises issues of mixed fact and law, the issue on this application raises only a question of statutory interpretation of section 68.1(8)(a), there being no dispute regarding the relevant facts and, in particular, as to what was decided by the Court and the Society, respectively.

[26] This raises a true question of jurisdiction of the nature contemplated by the Supreme Court in Dunsmuir at para. 59 ─ whether the Act gives the Board the authority to decide the respondent’s complaint. Such a question attracts a correctness standard of review as a question of law. If the Board’s interpretation is incorrect, the Decision is invalid as the Board will be found to have been ultra vires.

[27] We also note that this conclusion is consistent with a recent decision of Linhares De Sousa J. in Children’s Aid Society of the County of Renfrew v. M.S.H., [2009] O.J. No. 513 (Div. Ct.). While that decision addressed the Board’s jurisdiction in respect of orders under section 144 of the Act, Linhares De Sousa J. also reached the conclusion that the standard of review of the Board’s jurisdiction was correctness for substantially similar reasons, and in substantially similar circumstances, as in the present proceeding.

Did the Board have Jurisdiction to Consider the Respondent’s Complaint?

Positions of the Parties

The Society

[28] The Society’s position is that once the child protection proceedings commenced in respect of the respondent’s children with their apprehension by the Society, all matters pertaining to the Society’s treatment of the respondent and her children were before the Court for purposes of section 68.1(8)(a) and, therefore, were beyond the jurisdiction of the Board. The Society takes the position that the Legislature intended section 68.1 to apply only to child protection cases that proceed without court involvement. The Society therefore denies the distinction between concurrent court and Board jurisdiction adopted by the Board in the Decision on the basis that all matters of procedural fairness can be addressed by the court in connection with the adjudication of child welfare proceedings before it.

The Respondent

[29] The respondent was invited to make submissions on the hearing of this application for judicial review but declined to do so, apart from offering to answer any questions this Court might have of a factual nature.

The Board

[30] The Board took no position on the hearing of this application for judicial review other than speaking to the issue of the appropriate standard of review. As mentioned above, in the Decision, the Board articulated a theory of concurrent jurisdiction.

Analysis and Conclusions

[31] The object of section 68.1 of the Act is to ensure that the requirements of natural justice are adhered to in decision-making that affects the interests and rights of children and their parents. As enshrined in section 2(2) of the Act, there are two fundamental elements of natural justice in the context of child protection proceedings:

1. that children and their parents have an opportunity to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving; and

2. that decisions affecting the rights and interests of children and their parents are made according to clear, consistent criteria and are subject to procedural safeguards.

[32] However, section 68.1 of the Act prevents the Board from conducting a review of a complaint if the subject of the complaint is an issue that is before the court. In such circumstances, even if the Society has taken a position in the proceedings before the court, the ultimate decision-maker is the court in the exercise of its statutory authority and its inherent jurisdiction as parens patriae.

[33] The exception in section 68.1(a) reflects the fact that the statutory and common law requirements of natural justice in respect of hearings before a court exclude the need for Board review of such decisions. In this context, it is relevant that section 38 of the Act specifically provides that a child and a child’s parent, among others, are entitled to notice of any child protection hearing under Part III of the Act, to be present at any such hearing, to be represented by a solicitor. and to make submissions. In addition, common law principles of natural justice require a court to give written and comprehensible reasons for its decisions. There is, therefore, no doubt that the Board’s jurisdiction is excluded in circumstances where specific decisions are taken by the Court because the procedural safeguards of natural justice are assumed to be observed. The Board accepts this conclusion in the Decision.

[34] We think it necessarily follows, however, that the Board’s jurisdiction is also excluded if the specific decision could have been brought before the Court by a parent or a child in the child protection proceedings. Accordingly, we conclude that the Board erred in concluding that it had jurisdiction to review the respondent’s complaints. We reach this conclusion for the following six interrelated reasons.

[35] First, in respect of child protection proceedings, all decisions are ultimately made by the court, not a child welfare agency. Even if discretion is granted to a child welfare agency pursuant to a court order, the court remains seised of, and responsible for, all decisions taken under the order by the child welfare agency. A parent or child who wishes to contest a decision by a child welfare agency pursuant to a court order has the right at all times to require the court to review such decision. Accordingly, there is at all times a forum in which a parent or child who believes that a child welfare agency has failed to give due regard to his or her views in taking a decision is entitled to have that decision reviewed and to receive written reasons for the court’s decision. This is the central principle upon which the remaining reasons are also based.

[36] Second, as the circumstances of this case demonstrate, the distinction drawn by the Board between decisions taken by a court and decisions taken by a child welfare agency is likely to result in duplication of review in a number of circumstances.

[37] In many instances, both the court and a child welfare agency will address the same issue in the course of a child protection proceeding, albeit at different stages. In the present case, the principal objection of the respondent is that the Society failed to hear her views regarding kin placement of her children with the respondent’s aunt or mother and failed to agree to any particular placement with her relatives. However, even assuming that the Society had reached a decision rejecting both kin placements, the ultimate decision-maker on this issue was the Court. Moreover, as described above, by virtue of the requirements in section 57(3), the Court was required by the Act to address this very issue on each of the hearing dates in the child protection hearing. For this reason, it is the decision of the court, not that of the child welfare agency, that is determinative in respect of the issue of kin placement even if the Society also makes decisions regarding the same issue between hearing dates.

[38] Third, it is fundamentally incorrect to conclude in paragraph 42 of the Board’s decision in respect of kinship options that, “where no plan was presented at the time, the issue was not before the Court” but it was before the Society because the respondent had made her issues known to the Society. Similarly, the Board proceeded on an erroneous view of the law regarding the locus of decision-making regarding kinship placement. In paragraphs 42 and 43 of its judgment, the Board concludes that kinship options and placement decisions were in the control of the Society rather than the Court:

Once the Court made the children temporary wards of the Society, custody vested with the Society but no placement decision was made because that was within the control of the Society as temporary parent. To clarify, what the court decided was custody and not placement. Placement in a kin setting was, as stipulated by the Society, a decision that it could make provided it followed appropriate procedures.

[39] In view of section 57(3) of the Act, this is clearly incorrect in respect of kinship decisions. It is also incorrect to suggest that the Society exercised “complete authority” over placement and that the issue was not before the court. Ultimately, a court is the final arbiter in respect of these issues and is available to the respondent if she is dissatisfied with the action or inaction of the Society. The fact that a review of the representations of interested parties on kinship options and placement decisions takes place in a court hearing that addresses these substantive issues, rather than in a Board hearing that focuses solely on procedural fairness, is irrelevant. Once child protection proceedings are before a court, the protection of procedural fairness that is afforded interested parties under the Act takes the form of procedural fairness in the court hearings.

[40] Similarly, for the purposes of the issue on this application, there is also no distinction between the treatment of kinship placement and the other issues of access and counseling raised by the respondent. It is irrelevant that any particular issue was not put before the Court. In this case, the fact that the issues complained of were not actually put before the Court was a decision of the respondent. That does not mean that she was deprived of natural justice. It means only that the Court was the forum for addressing her concerns regarding procedural fairness in the context of a substantive court hearing and that she chose not to avail herself of that opportunity.

[41] Fourth, as a related matter, the Board’s approach appears to turn on its view expressed at paragraph 39, in the decision, which is included in the excerpt cited above, that unless the Board has the power to review the use of court delegated discretion by a child welfare agency, there will be no body vested with that authority and no oversight over issues relating to communication to, and treatment of, parents when decisions are made. We disagree with this conclusion.

[42] Ultimately, the Court is the final arbiter in respect of these issues and is available to the respondent if she is dissatisfied with the action or inaction of the Society. All such matters are therefore before the court for the reasons described above.

[43] Fifth, the object of ensuring that the principles of natural justice are observed is ultimately, and fundamentally, the best interests of the child involved. Such object is best achieved by ensuring that all interested parties have an opportunity to be represented and heard in respect of decisions affecting the child and to receive written reasons explaining the basis for decisions taken, among other things, to permit any review or appeal to proceed. As the previous reason reflects, ensuring that the requirements of natural justice are observed in respect of decision-making respecting children is not an end in itself. Nor is the Board a regulator of child welfare agencies in the Province. In the circumstances in which a child protection proceeding is before a court, interested parties may bring all complaints before the court which will review the substantive issue of the best interests of the child in accordance with the requirements of natural justice. In it is only where child protection proceedings are not before a court that a forum is required to ensure that the interests of the child are addressed through the benefit of the involvement of all interested parties.

[44] As a related matter, the Board’s approach is, in our view, contrary to the effective resolution of complaints of interested parties in child protection proceedings. As the Board’s decision demonstrates, the remedies available to it in the present circumstances are limited to a direction to deliver written reasons for the Society’s historical decisions. If, alternatively, a complainant brings a timely application before the court, the complainant will be in a position to make representations in the context of a substantive decision, or a review of a substantive decision, by the court.

[45] Lastly, we would note that the Board’s approach has the result that the scope of the jurisdiction of the Board and the Court in any given situation will depend upon a decision of a parent or other interested party in a proceeding. This approach is a necessary implication of the approach of the Board as described, among other places, in paragraph 42 of the Decision.

Once the court had become involved, the Applicant identified her concerns with what she perceived as the ongoing failure of the Society to follow through with kinship options and to hear her concerns or provide her with explanations in this regard. No kinship plans were put before the Court. While the Court had an obligation to consider any less intrusive placement or any plan before it, where no plan was presented at the time, the issue was not before the Court. The issue was however put to the Society. The Society had the authority to investigate kinship options and to place the children in a kin home as the temporary custodians for the children.

[46] We do not believe that the Legislature intended that the jurisdiction of the Board was to be decided by a decision of an interested party to make his or her representations known to a child welfare agency rather than to a court. The Act, as well as the common law, provides that all substantive issues, including the exercise of any statutory or other authority granted to a child welfare agency, are ultimately matters for the court. There is no reason why the jurisdictional issue of the Board’s authority should not be similarly determined.

[47] Accordingly, it is access to the Court, and the principles of natural justice that apply in proceedings before a court, that are the means by which the respondent is assured that procedural fairness will govern decisions respecting the best interests of her shildren. Such protections apply whether, as in cases of placement, there is an express statutory requirement to consider kin placement, as in the cases of access, there is an express grant of authority under to the Act or, as in the case of counseling for R.G., the authority is implicit in an interim care and custody order. The Society must exercise its authority in all circumstances reasonably with a view to the best interests of the child. Ultimately, the court can and, upon request by an interested party will, review the exercise of any such authority by a child welfare agency and, in the course of doing so, is required to conduct such hearing in accordance with the principles of natural justice.

[48] We wish to stress that this decision does not, in any way, address the merits of the respondent’s complaint against the Society or the Board’s decision that such complaint had real merit. To the extent that the Society may have failed to comply with its obligations of procedural fairness in its conduct of the child protection hearing in respect of the respondent’s children as the Board found, we have considerable sympathy for the respondent. The decision herein addresses solely the issue of the Board’s jurisdiction under the Act to review the respondent’s complaints.

[49] Based on the foregoing, the Society’s application is granted and the Decision is set aside. As the Society is not seeking its costs in this application, no costs are awarded.

Jennings J.

Wilton-Siegel J.

Koke J.

Date: July 20, 2010