WARNING
THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:
- (7) The court may make an order,
(a) excluding a particular media representative from all or part of a hearing;
(b) excluding all media representatives from all or a part of a hearing; or
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
CITATION: Children's Aid Society of Waterloo v. D.D., 2011 ONCA 441
DATE: 20110609
DOCKET: C52944
COURT OF APPEAL FOR ONTARIO
MacPherson, MacFarland and Epstein JJ.A.
BETWEEN
The Children’s Aid Society of Waterloo
Applicant (Respondent)
and
D.D.
Respondent (Respondent)
and
Child and Family Services Review Board
Respondent (Appellant)
Jennifer Scott, for the appellant
Cheryl Buehler, for the respondent C.A.S.
Heard: March 1, 2011
On appeal from the judgment of the Divisional Court (Justice John R. Jennings, Justice Edward J. Koke and Justice Herman J. Wilton-Siegel) of the Superior Court of Justice, dated July 20, 2010.
MacFarland J.A.:
[1] This is an appeal with leave of this court from the judgment of the Divisional Court, dated July 20, 2010, wherein it was ordered that the application of the Children’s Aid Society of the Regional Municipality of Waterloo (CAS) be granted and the decision of the Child and Family Services Review Board (CFSRB) dated August 24, 2009, be set aside.
[2] The respondent, D.D., filed an application with the CFSRB on May 25, 2009, under ss. 68 and 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA). D.D.’s complaints related to the placement and treatment of her children while in the care of the CAS.
[3] The CAS disputed the jurisdiction of the CFSRB to hear the matter essentially on the basis that, because D.D.’s children were the subject of a protection application that was before the court, all matters relating to the apprehension of D.D.’s children were matters for the court, as opposed to the CFSRB, to determine. The CFSRB did not accept the submission of the CAS; it concluded that it had jurisdiction to hear D.D.’s complaint and did so.
[4] The CAS brought an application for judicial review of the CFSRB’s decision to the Divisional Court. The Divisional Court found that the CFSRB did not have jurisdiction to hear D.D.’s complaint and it set aside the decision of the CFSRB. The CFSRB appeals from that decision pursuant to s. 6(4) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 and leave granted by this court on October 27, 2010.
[5] The issue raised on this appeal is accurately stated in the appellant’s factum as follows:
This appeal concerns the ability of parents to access the administrative complaints processes before children’s aid societies (“societies”) and the Board under sections 68 and 68.1 of the Child and Family Services Act (the “CFSA”) in relation to their service-related complaints, when child protection proceedings have been commenced before the court. In particular, it involves the interpretation of subsection 68.1(8) of the CFSA and the standard of review to be applied to the Board’s decision under that provision.
THE FACTS
[6] D.D.’s two children – R.G., age 13, and J.M., age 10 months – were apprehended by the CAS on February 5, 2009 and placed in separate foster homes, even though family members were said to be present during and immediately following the apprehension and available to take the children.
[7] A protection application in relation to the two children was commenced and was returnable before the Ontario Court of Justice on February 10, 2009. There were a number of appearances before the court, which D.D. attended with counsel and, on June 17, 2009, her children were, by order of Lynch J., returned to her care subject to CAS supervision.
[8] While the protection application was pending, on May 25, 2009, D.D. made a complaint in writing to the CFSRB. The substance of her complaint is best stated in her own words:
My children were removed from my care in [February] 2009. My daughter 13 and son 8 [months] at the time were placed in separate foster homes even though many relatives came forward to have the children placed with them. The social worker told my family that the process of having the children placed with family would take time. My daughter was removed from foster care and placed in a group home within 48 [hours] with no reason given to me. My daughter is a straight A student who attends church regularly on her own and is now living in a group home with children with charges and behavioural problems. This decision took only 24 [hours] however placing my children with family has yet to be approved. My social worker has made false accusations against me and continues to do so. I have tried working with her and she always states that it is out of her hands but does not tell me whose hands it is in. My children are at risk of significant emotional harm if this continues and [I] am very concerned for them but my social worker and her supervisor are not. I have tried to speak to others but the social worker seems to cut me off before [I] can speak to others.
[9] The CAS took the position that the CFSRB was without jurisdiction to hear D.D.’s complaint. As there was an outstanding protection application before the court, D.D. was required to bring her complaints to the court. All of D.D.’s complaints, they argued, could have been raised with the court on the child protection application and, as such, the CFSRB had no jurisdiction to hear the complaint.
[10] The CFSRB, on the other hand, took the position that D.D.’s service-related complaints were not issues before or decided by the court and as such the CFSRB had jurisdiction to hear the complaint and proceeded to do so.
Proceedings Below
CFSRB Decision
[11] In its careful and detailed reasons the CFSRB set out the nature of D.D.’s complaints which it found eligible under ss. 68.1(4)(4) and 68.1(4)(5) of the CFSA and summarized the complaints as follows:
• That the Society has failed to comply with clause 2(2)(a) of the Act which states “that service providers shall ensure that children and their parents have an opportunity, where appropriate, 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.”
• That the Society has failed to provide her with reasons for decisions that affect her interests.
• That her daughter, thirteen, and son, eight months, were removed from her care in February, 2009 and were placed in separate homes, even though many relatives came forward to have the children placed with them.
• That the Applicant received no information from the Society about how the decisions were made regarding the children’s placement.
• That the Society did not think of the children’s well-being as identified by her concerns in their decision making.
[12] In para. 5 of its reasons, the CFSRB stated the issue before it and summarized its disposition of the complaints before it as follows:
The issue for the Board on the merits is whether or not the Society complied with its obligations under sections 68.1(4)4 and 68.1(4)(5) of the Act. The Board must determine if the Society gave the Applicant an opportunity to be heard when she raised concerns about her children and the services provided by the Society. The Board must determine if the Society provided the Applicant with reasons for decisions that affected her interests. For the reasons that follow, the Board has determined that the Society failed to provide the Applicant with the requisite opportunities to be heard except with respect to the period after June 10, 2009 regarding kin placements. Further, for the reasons that follow, the Board has determined that the Society failed to provide the Applicant with reasons for decisions that affected her interests.
[13] The CFSRB succinctly summarized the distinction, as it saw it, between its role and that of the court at paras. 34-35 of its reasons:
Issues of substantive child protection, custody and the granting of access are not decided by the Board and fall within the Court’s mandate. Conversely, the Court will rarely examine whether a Society took into account the views and wishes of a parent or provided them with reasons for decisions that relate to the services provided by Societies that might be linked to the steps taken by a Society with respect to an issue that is ultimately before the Court.
There may be instances in which a Court has decided an issue that might involve Society process. If the Court has made a finding in this regard, it has decided the matter and that decision is binding. There would be no point in the Board examining an issue that has been finally determined even if it was a matter more typically dealt with by the Board.
[14] The CFSRB took jurisdiction and decided the issues in favour of D.D.
[15] The CAS then sought judicial review of the CFSRB’s order. The Divisional Court concluded that the CFSRB erred in taking jurisdiction in circumstances where a child protection proceeding was underway in the court. As the court put it in para. 43 of its reasons:
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. [I]t 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.
ANALYSIS
[16] The parties agree that this appeal falls to be determined on the proper interpretation of s. 68.1(8)(a) of the CFSA.
[17] Section 68.1(8)(a) provides:
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 ….
Standard of Review
[18] The CFSRB’s position with respect to standard of review is set out in its factum as follows:
The Board concedes that it must be correct when it decides it has the authority to hear a service-related complaint under section 68.1(1) of the CFSA. This is a question of the Board’s true jurisdiction. The Board has the authority to hear a complaint if: (a) the complaint is from a person who has sought or received a service by a society; and (b) the complaint is enumerated in the specific grounds of complaint under subsection 68.1(4). The Board must be correct when it answers these two questions.
Once the Board has found it has jurisdiction to hear a service-related complaint, its determination under subsection 68.1(8) is subject to a reasonableness standard of review.
[19] In contrast, the CAS’s position is set out, as follows in its factum:
In this case, the Board’s decision relates directly to its authority to hear the complaint of [D.D.] If the subject matter falls within the meaning of section 68.1(8) there is no statutory authority for the Board to conduct a hearing. This determination must be correct.
[20] In short, the CFSRB’s position is that its jurisdiction is established when a complaint is made by a person who has sought or received a service by a society and the complaint falls within s. 68.1(4). Its interpretation, therefore, of s. 68.1(8) is an interpretation of its own statute, within jurisdiction, and that accordingly, its interpretation will be reviewed on a reasonableness rather than a correctness standard.
[21] The CAS on the other hand, takes the position that for the CFSRB to establish jurisdiction where there is an on-going protection application before the court, there must not only be a complaint by a person who has sought or received a service and that complaint must fall within s. 68.1(4), but also the complaint must not be one which has been, is or could be decided by the court.
[22] In other words, the CFSRB says its interpretation of s. 68.1(8) is a question within its jurisdiction reviewable only on a reasonableness standard. The CAS says where there is an ongoing protection application before the court the CFSRB is without jurisdiction unless it correctly interprets s. 68.1(8).
[23] It will be helpful to set out the legislation:
68.1(1) If a complaint in respect of a service sought or received from a Society relates to a matter described in subsection (4), the person who sought or received the service may,
(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section; or
(b) where the person first makes the complaint to the society under section 68, submit the complaint to the Board before the society’s complaint review procedure is completed.
(4) The following maters may be reviewed by the Board under this section:
Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68(1) as required by subsection 68(2).
Allegations that the society has failed to respond to the complainant’s complaint within the time frame required by regulation.
Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.
Allegations that the society has failed to comply with clause 2(2)(a).
Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
Such other matters as may be prescribed.
(5) Upon receipt of a complaint under this section the Board shall conduct a review of the matter.
[24] Section (7) sets out the remedies the CFSRB may order and subsection (8), which is at issue on this appeal, provides that
(8) 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 ….
[25] Section 68.1 provides a scheme whereby a person who is in receipt of services from a society or who has requested or sought such services may make certain complaints in relation to those services. If the subject matter of the complaint falls within subsection (4) of 68.1 the CFSRB “shall”, by subsection 5, conduct a review of the matter. Subsection 6 addresses procedural matters and subsection 7 sets out the remedies available to the CFSRB.
[26] Subsection 8, however, is very clearly worded and states that the CFSRB “shall not” conduct a review of a complaint if the subject of the complaint is an issue that has been decided by the court or is before the court.
[27] In my view, before the CFSRB can embark on a review, it must be satisfied that the subject matter of the complaint is neither (i) an issue that has been decided by the court nor (ii) an issue that is currently before the court. The language of the section is mandatory. Unless the subject matter of the complaint is outside subsection (8), the CFSRB does not have jurisdiction to hear the complaint. The interpretation will be one of mixed fact and law – the factual aspect will be the nature of the complaint in relation to the services delivered or sought, and the legal aspect will be the application of those facts to the language of the statute. In my view, subsection (8) raises a true question of jurisdiction and the CFSRB must be correct in its interpretation of that subject on the facts of the specific case before it.
[28] In its seminal decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 59, the majority noted:
Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. … “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 14-3 to 14-6.
[29] In my view, subsection 8 of s. 68.1 outlines circumstances where the CFSRB does not have authority to review a complaint.
[30] Unless the CFSRB correctly determines that the subject matter of the complaint does not fall within the subsection, it lacks the necessary jurisdiction or authority to, in the language of Dunsmuir, “make the inquiry”. Put another way, the interpretation of subsection 8 of s. 68.1 involves a true question of jurisdiction where the CFSRB must be correct.
Statutory Interpretation
[31] The overarching principle that guides courts when called upon to give meaning to statutory language is set out at para. 21 of the decision of the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27:
Although much has been written about the interpretation of legislation (citations omitted), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[32] The purpose or object of the legislation in this case is set out in the statute itself:
Paramount Purpose
1(1) The paramount purpose of the Act is to promote the best interests, protection and well-being of children.
Other Purposes
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:
To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, whenever possible, be provided on the basis of mutual consent.
To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
To recognize that children’s services should be provided in a manner that:
(i) respects a child’s need for continuity of care and for stable relationships within a family and cultural environment,
(ii) takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,
(iii) provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and
(iv) includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community where appropriate.
[33] Section 2 of the CFSA refers to the duties of “service providers”:
2.(2) Service providers shall ensure,
(a) that children and their parents have an opportunity where appropriate 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
(b) that decisions affecting the interests and rights of children and their parents are made according to clear, consistent criteria and are subject to procedural safeguards.
[34] Section 3 of the CFSA defines “service provider”, which includes a Children’s Aid Society.
[35] Here the complaint of D.D. concerns the manner in which the CAS handled the temporary placement of her children while the protection application made its way through the courts. These complaints were separate and different from the substantive issues before the court. The court process would consider the best interests of D.D.’s children on a permanent, ongoing basis. D.D.’s complaints related to the temporary treatment and placement of her children during the time that the court process was ongoing, including the failure to place her children with willing family members, the refusal to give any reason why her children were not placed with family and details in relation to the exercise of her access to her children.
[36] The complaints that D.D. brought to the CFSRB did not relate to the protection application per se and, indeed, would in all likelihood be considered irrelevant to it. Her complaints related to the manner in which the CAS delivered its services and its failure to address her complaints.
[37] Section 68 of the CFSA deals with the complaint process available to persons in receipt of services from the CAS. Section 68 sets out the procedure to be followed where a complaint is made to a Society. Section 68.1 outlines the process for making a complaint to the CFSRB by a person in receipt of services in respect of those services.
[38] There is no dispute that the subjects of D.D.’s complaints have neither been decided by the court nor are they currently before the court. Indeed the CAS, in support of its arguments, says that although represented by counsel on each appearance before the court, the complainant has not raised the issue of family placement for her children.
[39] In my view, that argument serves to underline the differences between what the court process is intended to address and what the CFSRB is intended to address.
[40] In the court proceeding, the issue is where the children should be placed in their best interests. Obviously, D.D.’s position in that process is that it is in the children’s best interests to be returned to her – a position the court ultimately agreed with.
[41] Her position before the CFSRB and to the CAS was that, on a temporary basis only and while the placement of her children was under consideration by the court, if the children could not be with her she wanted them with members of her family who were willing to have them. The CAS refused to accede to her request and refused to give her any reason why. Subsection 68.1(4) in these circumstances is clearly engaged.
[42] The court and the CFSRB are concerned with different issues. The court, of course, is engaged in a determination of the best interests of D.D.’s children in terms of where they should live in the long term. The CFSRB, in this instance, is concerned with whether the CAS is carrying out its statutory mandate in terms of its dealings with D.D. in the short term, while matters are pending before the court.
[43] As well, D.D. had complaints over the manner in which the CAS was controlling her access visits with her children. The court had ordered that, on an interim basis, D.D. could have supervised visits with her children at the discretion of the CAS. While the court most certainly could have considered D.D.’s complaints in relation to the delivery of services by the CAS, it was not the only forum available to her.
[44] Nothing precluded the CFSRB from dealing with D.D.’s complainants except section 68.1(8). None of the matters raised before the CFSRB had been raised before the court nor had they been decided by the court.
[45] I do not accept the CAS position that if the matters could have been raised before the court that is where they must go. The language used in the statute is clear: only those matters “decided by the court or before the court” – past and present – are excluded from the CFSRB’s jurisdiction. If the legislature had intended that all matters that could be raised before the court were also excluded, it would have said so in clear language and it did not.
[46] In my view, the CFSRB’s decision to accept jurisdiction was correct and in accordance with its statutory mandate.
DISPOSITION
[47] I would allow the appeal, set aside the decision of the Divisional Court and reinstate the order of the CFSRB.
RELEASED: June 9, 2011 “JCM”
“J. MacFarland J.A.”
“I agree J.C. MacPherson J.A.”
“I agree Gloria Epstein J.A.”