CHILD AND FAMILY SERVICES REVIEW BOARD
C.S.
v.
Children’s Aid Society of Toronto
WRITTEN REVIEW REASONS FOR DECISION
Indexed as: C.S. v. Children’s Aid Society of Toronto (CFSA s.68)
INTRODUCTION
1C.S. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on August 4, 2010 (the “August application”) pursuant to subsection 68.1(1) of the Child and Family Services Act (the “Act”) against the Children’s Aid Society of Toronto (the “Society”). C.S. filed a second application against the Society on September 21, 2010 (the “September application”). This decision deals with both applications.
2Both the August and September applications to the Board allege that the Society: refused to proceed with a complaint; failed to respond to a complaint within required timeframes; failed to comply with its complaint review procedure or other procedural requirement; failed to comply with subsection 2(2)(a) of the Act, which requires Service providers to ensure that children and their parents have an opportunity where appropriate to be heard about service concerns, and when decisions affecting their interests are made; and that the Society failed to provide C.S. with reasons for a decision that affects her interests.
3With regard to the August application, the Board determined on August 9, 2010 that it was eligible for review under sections 68.1(4)4 and 68.1(4)5 of the Act, meaning the application was eligible to proceed to the next step in the Board’s process with respect to the 2(2)(a) allegation, and the provision of reasons for a decision affecting her interests. The Society filed a summary reply on August 13, 2010 in which it took the position that all the matters raised in the application have been dealt with by the Society, and that no hearing is therefore required. The Applicant sent a letter to the Board on August 17, 2010, in response to the Society’s summary reply, outlining additional concerns. The Society filed an updated summary reply on June 20, 2011, after the Board sent it a copy of the Applicant’s response letter, on June 15, 2011.
4With regard to the September application, the Board determined that it was eligible for review under the same sections, on October 22, 2010. In the Society’s summary reply of October 27, 2010, it took the position that all the matters raised in the application have been dealt with by the Society through a meeting on September [...], 2010, and that the application should therefore be dismissed without an oral hearing.
5According to subsection 68.1(5) of the Act and section 13 of Ontario Regulation 494/06, the Board may determine applications by way of written review or an oral hearing. Given the issues raised in the applications and the court materials filed in this case, the Board finds them to be appropriate for a written review at this time.
6The issue for the Board is whether the Board has jurisdiction to hear the applications.
7The Board has determined that the Board lacks jurisdiction because the court specifically dealt with the Applicant’s concerns in the child protection proceedings. Further, the Applicant’s religion-related concerns are currently before the court in a civil proceeding.
BACKGROUND
8The Applicant is the mother of [the child], who was apprehended from her mother’s care and later returned to her on two occasions, in June 2006 and in February 2007, subject to a supervision order which was terminated in January, 2009. The child was apprehended from her mother’s care a third time on November […], 2009, and at the time of the applications to this Board, was under the care of the Society.
9The Society started a protection application before the Ontario Court of Justice, in which it applied for Crown wardship with no access.
10C.S. had been attending access visits with [the child], supervised by the Society.
11When the applications were first filed, the Board informed the Applicant and the Society that it could not proceed with the applications and would be placing them on “hold”. The Board was waiting for a final decision to be rendered in another proceeding, which would determine whether the Board has authority to hear any complaints under section 68.1 of the Act when there is an ongoing child protection court proceeding involving applicants and their families.
12At the time of C.S’s applications to the Board, there was an ongoing child protection court proceeding involving her daughter [the child]. Madame Justice G.W., of the Ontario Court of Justice, rendered a decision on May […], 2011 in which she made a final order that [the child] be made a ward of the Crown and placed in the care and custody of the Society, with no access (“CAS v. S-S”). The Society forwarded a copy of the decision to the Board on May […], 2011. The Society further informed the Board, on June […], 2011, that the Applicant has appealed that decision.
13The Board has decided to proceed with these applications by way of written review at this time because the decision of Madame Justice G.W. has clarified the matters that were before the court in the child protection proceedings. In addition, the Divisional Court case that led to the Board putting the applications on hold initially, was recently overturned at the Court of Appeal.1
ANALYSIS
14[The Applicant] outlined her concerns in three separate documents to the Board: the August 4, 2010 application, the August 17, 2010 letter, and her September 21, 2010 application. [The Applicant’s] concerns can be summarized into three categories:
(1) Treatment by Society workers at access visits
- workers failed to give the Applicant answers to questions (Aug 4)
- workers gave the Applicant false information (Aug 4)
- lack of respect and a feeling that she has no control (Aug 4)
- workers did not ask her opinion or listen to her (Aug 4)
- access visits were held in inconvenient location (Aug 17)
- society workers are too physically close to her during access visits (Aug 17)
- society worker told the Applicant not to help [the child] in the bathroom on September […] visit (Sept 21)
- society worker peeked into the stall while [the child] was in the bathroom during visit (Sept 21)
- lack of respect including accusations, and not listened to (Sept 21)
- lack of privacy (Sept 21)
(2) Failure of Society to protect [the child]
- [the child] came to a visit without a hat and with a mildly sunburned face (Aug 4)
- sexualized behaviour of the child, which, in the Applicant’s view, has resulted from emotional trauma in care (Aug 4)
- a worker pushed [the child] in July 2010 (Aug 4)
- society worker did not clean up toy box at access visit (Sept 21)
(3) Failure of Society to support her as a parent
- society has not attempted to “put family together” (Aug 4)
- the Applicant feels stigmatized by the Society due to her past (Aug 17)
- the Society did not support efforts to teach the child about Judaism (Aug 17)
- society worker who was supervising was not observing interaction between [the Applicant] and [the child] (Sept 21)
- society worker has not helped Applicant understand what she needs to change, or given a chance to improve. Society has not worked with [the Applicant] to help her regain custody (Sept 21)
- appointments were made for [the child] without keeping [the Applicant] informed; [the Applicant] is not informed of daughter’s needs (Sept 21)
- lack of communication between foster mother and [the Applicant], and between the Society and [the Applicant] (Sept 21)
15The Applicant complains that the Society has done nothing in response to these concerns, and has refused her request for a new worker.
16The Applicant takes the position in her applications that the matters have not been previously dealt with in the court, and are not currently before the court.
17The Society did not comment on the issue of jurisdiction in the initial summary replies. In the summary reply update of June 20, 2011, the Society raised the Court decision of CAS v. S-S, and argued that the Board has no jurisdiction over the August 17 issues because the Applicant commenced civil proceedings on the same matters in the Superior Court of Justice, on February […], 2011.
[18] Section 68.1(8)(a) of the Act states:
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.
19The court in CAS v. S-S was ultimately deciding whether [the child] was a child in need of protection and should be made a Crown ward, and whether the Applicant should have access. This Board, on the other hand, has the task under section 68.1 of the Act of determining whether the Society heard and responded to [the Applicant’s] concerns. In coming to its decision however, the Court received evidence on, considered, and made findings based on the very issues raised by the Applicant in her complaints to this Board.
20While a number of the complaints grouped into this category are non-specific (for example, “failure to answer questions”), it is clear they spring from the interaction between the Applicant and the Society at access visits. It is evident upon reading CAS v. S-S that the Court heard, and made findings of fact with respect to, [the Applicant’s] concerns about her interaction with the Society at access visits. The court commented extensively on the conflict between the Applicant and the Society, and [the Applicant’s] general complaints appear to reflect that same conflict.
21Paragraphs 8-10 of the decision reflect [the Applicant’s] concerns around treatment at access visits. Paragraph 9 of the Court decision, for example, reads:
It is the mother’s position that, while the evidence of the access supervisors and social workers was negative, in fact, the case notes of the observations of the access visits contained many positives and the supervisors and social workers focused on the negative and on negative details of the access visits rather than the visits as a whole, which were generally positive. It is also the mother’s position that the Society over-emphasised her negative conduct and under-responded to issues that she raised about the care the child was receiving in the foster home.
22Paragraph 41 states:
Mother raised concerns about her and [the child’s] treatment during access visits by the Society staff. Based on the evidence, it is clear that she felt that the supervisors were overly and unreasonably negative towards her, and interrupted her visits by insisting that she talk to them during her access time. She also had concerns about the actions of some of the access supervisors who, according to the mother, assaulted [the child].
23The Court made a finding of fact in this regard, at paragraph 40:
The overly negative tone of the evidence impacted on the weight I gave to the evidence of the other access supervisors. They did not present a balanced picture of the access visits, focusing only on negative incidents and exaggerating the importance of these events which, even taken together, were not of great significance. Having said that, I acknowledge that insofar as their observations were consistent with that of Ms. D. and Ms. B., their evidence supported the conclusion that the concerns noted were consistent and persistent throughout the access visits.
24The specific incidents regarding [the child’s] use of the washroom during access visits is discussed in the Court decision as follows:
[para. 37] It was also Ms. B.’s observation that as the relationship between mother and the society staff deteriorated mother involved [the child] in the conflict. When she became upset she would speak loudly and in an obviously upset manner in front of [the child]. She used [the child] as a “go between” having her make requests of the staff, such as permission to go to the park. Other examples of this include: On one occasion at the beginning of the August […], 2010 visit, mother said, “You’re not going to hurt [the child] again,” while walking past the worker holding [the child’s] hand. On that same visit, mother abruptly pulled [the child] from the worker. According to Ms. B., mother engaged in an argument with her during the December […], 2010 visit and, while holding [the child] in her lap, mother accused the worker and said that she would ask [the child] about being touched in the washroom. It was the observation of Ms. B. that [the child] became visibly upset during this argument.
[para. 38] Other access supervisors, including N.I., C.C. and K.P., testified about their observations of mother during the regular access visits (not part of the therapeutic access program). The affidavit evidence presented by the supervisors was generally negative and focused on incidents such as mother’s lack of cooperation in teaching [the child] to use the bathroom on her own and her conflict with them. Their evidence is generally consistent with that of the TAP coordinator and Ms. B..
25The Board finds that the Applicant’s concerns regarding treatment at access visits is a matter that was before the Court.
Failure of Society to protect [the Child]
26The object of the trial, and decision of Madame Justice G.W., was [the child’s] protection. The concerns raised by the Applicant to this Board were all considered by the court in coming to its conclusion. Paragraph 42 of the court decision is particularly relevant to this category of concerns raised by the Applicant:
Mother had concerns about the environment in which [the child] was living, testifying that [the child] described guns at school and described a hot dog as looking like a penis. It is clear that there was a high level of conflict between mother and the access supervisors, which may in part account for the overly negative evidence that they presented in the court. Unfortunately, the relationship between mother and various of the access supervisors did become quite hostile, with mother contacting the police about some of her concerns. This created a stressful atmosphere at the access visits. Mother did exercise poor judgement in involving [the child] in the dispute between her and the supervisors and having inappropriate discussions during the visits, which, according to the evidence, upset [the child].
27In addition, the Judge refers to [the child’s] behaviours at paragraphs 73 and 74. The decision indicates that [the child’s] sexualized behaviours were well known to the Society, and they were felt to merit intervention from the time she came into care.
Stigmatizing the Applicant and failing to support her parenting skills
28[The Applicant’s] concern that the Society has stigmatized her due to her past, relates directly to the Society’s view of [the Applicant’s] parenting abilities, which was a key issue to be decided by the Court, as noted at paragraph 12:
The significant concerns in this case are the child’s presentation when she came into care, mother’s past parenting, mother’s current ability to parent based on the observations of the social workers and access supervisors, the evidence before the court about mother and the mother’s plan of care.
29The court decision includes a number of paragraphs analyzing whether [the Applicant’s] past should be considered in the current decision (see in particular paragraphs 52-62). In doing so, the court received evidence from the Applicant on this point, as well as the Society, whose evidence was subject to cross-examination by the Applicant’s counsel.
30With respect to her concerns regarding failure of the Society to support her as a parent, this was extensively discussed by the Court. One example is paragraph 69:
[para 69] Mother has had numerous professionals involved with her over the years. She does not work positively with supports but develops antagonistic and hostile relationship with them. In both cases, mother developed difficult relationship with her supports, in the first case demonstrated through the breakdown of two shepherding home placements and the development of an antagonistic relationship with the [City] Society. In the current case, mother developed a very antagonistic relationship with the CAST workers and access supervisors.
31With respect to the Applicant’s concerns around teaching [the child] Judaism, the Society argues that it is before the Superior Court of Justice as a result of the Applicant bringing a civil suit. The Board agrees that the following paragraph, excerpted from her Statement of Claim, indicates the matter is currently before the court:
On or about September […], 2010 a meeting was held with the plaintiff, D.S. and the society workers Ms. B., H.K. and supervisor V.E.. During this meeting Ms. B. stated that “because the child [ ] is not Jewish, we do not involve anyone outside the child’s religious beliefs”. [The child] is not affiliated with any religious organizations and forces her into going into church. I have continuously communicated to the Children’s Aid Society not to do this. The Society has refused my requests.
32As a result, the Board finds that all of the Applicant’s concerns are before the court or have been decided by the court, and as a result are outside of the Board’s jurisdiction.
CONCLUSION
33For all of the above-noted reasons, the Board dismisses the applications.
Heather Gibbs
Board Member
Dated at Toronto, Ontario on this 13^th^ day of July, 2011.
Footnotes
- The Children’s Aid Society of Waterloo v. D.D. 2011 ONCA 441