[2010] O.J. No. 3119

2010 ONSC 3328

Ontario Superior Court of Justice Divisional Court

J.R.R. Jennings, H.J. Wilton-Siegel, and E.J. Koke JJ.

July 20, 2010

In February 2009, the Society apprehended two children of the respondent, D.D. The Society then commenced a protection application under s.40 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”). The court made an interim order placing the children in the care of the Society. The respondent’s access to her children was to be subject to the Society’s supervision and its discretion. The interim order was extended on five separate occasions. At each hearing, the respondent attended in court and was represented by legal counsel. A Temporary Care Custody Hearing was conducted and ultimately completed on June 17, 2009. On all dates of the hearing, the issue of potential kin placements was the subject of submissions by counsel for the Society and the respondent. The court ordered the return of the children to the respondent’s care subject to the Society’s supervision.

On May 25, 2009 the respondent filed a complaint with the Board pursuant to s.68.1 of the Act relating to the placement and treatment of the children while in the Society’s care. The respondent’s complaints included the following:

  1. The removal of the children despite offers of relatives to have the children placed with them;
  2. Lack of opportunity to be heard when decisions affecting her and her children were being made;
  3. Failure of the Society to provide the respondent with reasons for its decisions; and
  4. Lack of information from the Society regarding the decisions made regarding the children’s placements.

The Society brought a motion challenging the Board’s jurisdiction to hear the complaint. Section 68.1(a) of the Act states that the Board shall not conduct a review of a complaint under s.68.1 if the subject of the complaint is “an issue that has been decided by the court or is before the court”. After a brief recess, the Board issued oral reasons to the effect that it had jurisdiction and proceeded with the hearing. A written decision was released on August 24, 2009 in which 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. The Board ordered the Society to provide detailed written reasons regarding its placement decisions. With respect to the jurisdictional issue, the Board concluded that if an issue pertaining to the Society’s decisions was not explicitly dealt with by a court, such issues, including the respondent’s representations with respect to those decisions and the Society’s reasons for those decisions, could not be considered issues “decided by or before a court”. In reaching this conclusion, the Board drew a distinction between decisions of substantive child protection, custody and access which the Board acknowledged fell 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.

In determining the appropriate standard of review, the court noted that the issue on the application raised only the question of the statutory interpretation of s.68.1(8)(a). This raised a true question of jurisdiction of the nature contemplated by the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9 - whether the Act gives the Board the authority to decide the respondent’s complaint. The court noted that such a question attracts a correctness standard of review as a question of law. If the Board’s interpretation was incorrect, the decision was invalid as the Board would be found to have been ultra vires.

The court reviewed s.68.1 of the Act and noted that the object of this section was to ensure that the requirements of natural justice were adhered to in decision-making that affects the interests and rights of children and their parents. The section 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. The court noted that the exception in s.68.1(a) reflected the fact that the statutory and common-law requirements of natural justice in respect of hearings before a court exclude the need for the Board to review such decisions. The court found that it necessarily follows that the Board’s jurisdiction is also excluded if the specific decision at issue could have been brought before the court by a parent or a child in the child protection proceedings. Based on this conclusion, the court held that the Board erred in concluding that it had jurisdiction to review the respondent’s complaint.

The court noted that in respect of child protection proceedings, all decisions are ultimately made by the court, not a child welfare agency. 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 is entitled to have that decision reviewed and to receive written reasons from the court. The court further disagreed with the Board’s view that unless the Board had power to review the use of court-delegated discretion by a child welfare agency there would be nobody vested with that authority. The court noted that the court was the final arbiter in respect of these issues and was available to the respondent if she was dissatisfied with the action or inaction of the Society.

In the result, the court allowed the Society’s application and set aside the decision of the Board.