CHILD AND FAMILY SERVICES REVIEW BOARD
A.P.
v.
Dilico Anishinabek Family Care
REASONS FOR DECISION ON JURISDICTION
Indexed as: A.P. v. Dilico Anishinabek Family Care (CFSA s.68)
INTRODUCTION
1The Child and Family Services Review Board (the “Board”) received three separate applications on September 14, 2007, January 10, 2008 and January 21, 2008 from Ms. A.P. (the “Applicant”) regarding complaints against the Dilico Anishinabek Family Care (the “Society”) pursuant to section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C11 (the “Act”). All three applications are being considered as one application with the Society’s agreement. The Applicant complained that she raised many of these issues with different employees of the Society to no avail.
2Ms. A.P. expressed great concern about the safety and well being of her children while in the care of the Society, as well as her parental rights being ignored and a sense of frustration regarding having these concerns addressed.
3The Society submits that the Applicant’s complaints, concerns, and issues are before the Court. The Society and Ms. A.P. attempted to resolve some of their issues through a mediation process referred to as “Talking Together.” They were unsuccessful at these efforts.
4At the pre-hearing, Mr. Murray, counsel for the Society, raised the concern for the Society staff’s safety and requested security be present during the hearing. Ms. A.P. indicated that she considered this request a defamation of her character especially in light of the fact that she is considered a peacekeeper within her community.
5A hearing was held on March 19th, 2008 in Thunder Bay. The Society was represented by Mr. James Murray. The Applicant represented herself. Two members of the Thunder Bay Police Service were also present. The hearing was confined to the preliminary jurisdictional issue raised by the Society.
BACKGROUND
6Ms. A.P. is the biological mother of T.P. [born] August […], 1998; N.P. [born] […], 2000; S.P. [born] March […], 2002 and L.P. [born] January […], 2003. The biological father of all four children is J.G.. The mother is a member of [one band] and the father is a member of [another band]. The Applicant’s four children are currently in foster care under the supervision of the Society. The Society has been involved with the family since 1989 regarding concerns of alcohol abuse, domestic violence, inadequate supervision, neglect and risk of emotional harm.
ISSUES
7The Applicant has listed 17 complaints to be addressed by the Board:
Not properly notifying the children’s father that the Applicant’s children had been apprehended;
Applicant not allowed to visit the children for 43 days and the children were separated into two different residences;
Not understanding that it was the Applicant’s responsibility to notify the children’s father. This was not explained to her;
Police escort to remove the Applicant when she was finally able to visit her children on July […], 2007;
Her rights have been taken away because of alleged hostility and aggression;
Very few visits with her children since July 2007;
Conflict between Child Protection Worker and the Applicant regarding - Ms. A.P.’s alcohol problem;
Children coming to visits dirty, smelling of urine, hungry and covered in animal fur;
Society Manager, J.C., grabbing son, S.P., precipitating a police investigation into the incident;
Repeated sexual and physical abuse while in foster care;
Traditional objects important to Native culture being denied to the children, taken away from them and not returned;
Requests for telephone and computer access for the children being ignored;
Letters have not been responded to;
The Applicant’s youngest child making comments about “bad touching” and the foster mother being mean to him; he has had bruises on his face as well;
The Applicant has outstanding complaints about sexual and physical abuse and is concerned that an investigation has not been pursued and no one has interviewed the children – the case has been closed;
The Society is refusing to deal with these concerns shared by both the father and the mother despite the Applicant’s attempts to speak to the Society’s Executive Director and/or other employees;
The Applicant’s phone calls have not been returned, drivers have not been available and visits have had to be cancelled.
MOTION
8The Society submits that all of the issues raised by the Applicant in her complaints are before the Court and therefore the Board has no jurisdiction to hear them pursuant to section 68.1(8) which reads as follows:
68.1(8)(a) The Board shall not conduct a review of a complaint under this section if the subject of the complaint is an issue that has been decided by the court or is before the court.
9The Society argues that this matter has been before the Child Welfare Court since the first appearance on July […], 2007. At that time an order was made that the children remain in the temporary care and custody of the Society until further order of the Court.
10Court Appearances regarding issues of custody and access occurred on:
August […], 2007, Case Conference set for October […], 2007.
October […], 2007, Case Conference re-scheduled for October […], 2007.
October […], 2007, supervised access arranged with a motion to determine access scheduled for November […], 2007.
November […], 2007, matter adjourned to December […], 2007.
December […], 2007, motion to determine parental access put over to December […], 2007.
December […], 2007, access issues discussed and worked out on consent for the Christmas period. The case was adjourned to January […], 2008.
January […], 2008, case scheduled for Settlement Conference on February […], 2008 and March […], 2008 to get trial dates due to the lack of progress among the parties.
February […], 2008, Settlement Conference held.
March […], 2008, Trial dates were set for July […],[…],[…], 2008.
ANALYSIS
11There are two key points which must be determined before the Board can decide whether it has jurisdiction to hear an application: firstly what is the “complaint,” and secondly what are the “issues before the Court.”
12The Board understands Mr. Murray’s argument to be that the “issues before the Court” are the “issues raised in evidence before the Court.” The Court has the jurisdiction to make findings and orders based on all of the evidence placed before it.
13The Board finds, however, that the “issues before the Court” must be understood as the “issues to be decided by the Court.” Otherwise, no person involved in Court proceedings with a children’s aid society would be able to complain about services received. The Board was designed to review the question of the interaction between a service-provider and its client. The fact that a client complaint is part of the factual context in a court proceeding does not mean that the particular complaint is before the Court for a determination.
14Whether the Society provided Ms. A.P. with the opportunity to be heard regarding her concerns for her children, responded in any meaningful way to these concerns, and gave reasons for its decision are not matters to be decided by the Court. Complaints of this nature fit within the Board’s jurisdiction pursuant to section 68.1(4)4 and 5 of the Act. The Board finds that some of the Applicant’s 17 complaints clearly fall under these provisions of the Act, while others do not.
DECISION
15The Board finds that it has jurisdiction to hear the Applicant’s complaints numbered 1, 3, and 11, pursuant to section 68.1(4)4 which reads as follows:
(4) The following matters may be reviewed by the Board under this section:
4 Allegations that the society has failed to comply with clause 2 (2)(a).
Clause 2(2)(a) 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;
Issues 1 and 3
16The Society ignored the Applicant’s desire to have the biological father notified that the children were being taken into custody. The Applicant produced the father’s contact information so the Society could contact him, which was the responsibility of the Society, not the Applicant. This complaint concerns the Applicant’s allegation that she was not heard by the Society and as such, the Board has jurisdiction to hear it pursuant to section 68.1(4)4.
Issue 11
17The children are Aboriginal and as such are protected throughout the Act by its sensitivity and attention to cultural and spiritual care. The Applicant’s children were denied Aboriginal objects that are traditionally important to their spiritual well being and provide a sense of their cultural heritage.
Issues 2, 8, 9, 10, 13, 14, 15, 16, 17
18The Board finds that it has jurisdiction to hear the Applicant’s complaints numbered 2, 8, 9, 10, 13, 14, 15, 16, 17, as the Board finds that, in its opinion, the Applicant has not been heard under section 68.1(4)4. These complaints involve the Applicant’s concerns regarding the care of her children. The Applicant believes the Society failed to give a reasonable response to these issues. The Society did not answer the complaints, leaving the Applicant confused and unable to understand the Society’s position and/or process on how they handled the concerns.
Issues 6 and 12
19The Board finds that it does not have jurisdiction for the Applicant’s complaints numbered 6 and 12, as they are complaints regarding access and are currently before the Court under section 68.1(8)(a).
Issues 4, 5, 7
20These complaints are not covered by the Act.
CONCLUSION
21The Board denies the motion of the Society regarding issues numbered 1, 2, 3, 8, 9, 10, 11, 13, 14, 15, 16, 17 and upholds the Society’s motion regarding issues numbered 4, 5, 6, 7 and 12. Therefore, the Board will proceed to hear the Applicant’s issues, as described above, on its merits.
Wendell White
Presiding Member
Ruth Ann Schedlich
Board Member
Frances Sanderson
Board Member
Dated at Toronto, Ontario, this 15th day of April, 2008.