RS v. York Region Children's Aid Society, 2019 CFSRB 4

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

RS

Applicant

-and-

York Region Children’s Aid Society

Respondent

INTERIM DECISION

Adjudicator: Catherine Bickley

Date: February 20, 2019

Citation: 2019 CFSRB 4

Indexed as: RS v York Region Children's Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

RS, Applicant

Self-represented

York Region Children’s Aid Society, Respondent

Josephine Kiang, Counsel

Introduction

1On November 16, 2018, the Applicant filed an Application under section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1, (the “Act”). The Application is several hundred pages long and includes a number of documents from an ongoing child protection proceeding before the Superior Court of Justice (“SCJ”).

2The Child and Family Services Review Board (“CFSRB”) found the Application eligible under subsections 120(4)4 and 120(4)5 of the Act.

3In its December 3, 2018 Summary Reply, the Respondent challenged the CFSRB’s jurisdiction to review the Application and made extensive written submissions on that point. The Respondent submits that all issues raised in the Application are “matters that have been decided by the court or are currently live issues before the court”.

4Since April 2016, the Respondent has been engaged in a child protection proceeding before the SCJ involving the Applicant and her children’s father. That proceeding is ongoing.

5A December 6, 2018 Case Management Decision (“CMD”) directed the Applicant to provide written submissions on the jurisdictional issue. The CMD directed the Applicant to “specifically address the decision of the Ontario Court of Appeal in Children’s Aid Society of Waterloo v. D.D., 2011 ONCA 441 (“DD”) and the impact of that decision on the facts of this case”. The CMD included information on how that decision could be accessed online.

6For the reasons set out below, I find that the only allegation within the CFSRB’s jurisdiction is whether the Respondent heard the Applicant’s concerns and gave her meaningful reasons with respect to its refusal to change the worker assigned to her family’s file. All other allegations in the Application must be dismissed as they are issues before the court.

the law

7Subsection 120(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,

(a)is an issue that has been decided by the court or is before the court.

analysis

8The Court of Appeal for Ontario held in DD, above, that the mere existence of a child protection proceeding does not automatically bar the CFSRB from reviewing a complaint about the services an individual has received from a children’s aid society. The Court in DD at para. 35 also held that where service complaints are “separate and different from the substantive issues before the court”, the CFSRB may review the complaints.

9The Applicant acknowledges that some of the issues in the Application are pending before the court. She submits that two issues are not before the court.

10The first issue that the Applicant submits is not before the court is the choice of worker. The Family Services Worker assigned to the Applicant’s family’s file since October 2017 is male. The Applicant has requested a female worker with in-depth education and understanding regarding the spectrum of domestic violence. The Respondent has declined to change the worker but has arranged for a female worker to accompany the primary worker on visits to the Applicant’s home.

11The Respondent submits that the issue around the choice of worker is before the SCJ in the context of the Applicant’s alleged lack of cooperation with the Respondent.

12An excerpt from a transcript of the November 13, 2018 SCJ proceeding records the Respondent’s counsel stating:

As you’re aware, Your Honour, the court has no jurisdiction over choice of worker so essentially mother’s saying she’s not willing to work with the Society.

13I disagree with the Respondent’s submission that the choice of worker issue is subsumed by the larger issue of whether or not the Applicant has been cooperative. In my view, the relationship between the Applicant and the assigned worker and the legitimacy of the Applicant’s request for a female worker with specific expertise is a service issue that is separate and distinct from the substantive issues before the SCJ.

14While it is not within the CFSRB’s remedial powers to order a change of worker, it is within the CFSRB’s jurisdiction to determine whether the Applicant’s request for a different worker was heard and whether the Applicant was given meaningful reasons for the Respondent’s decision not to grant that request.

15The second issue that the Applicant submits is not before the court is her allegation that the Respondent has “steadfastly refused” to examine credible concerns about her children’s father. In this regard, she refers to two York Regional Police Occurrence Reports that she provided to the Respondent on November 28, 2018.

16The York Regional Police Occurrence Reports were provided to the Respondent after the Application was filed. Accordingly, they cannot form part of this Application unless an amendment of the Application is sought and granted. In any event, the allegation that the Respondent is not taking seriously the Applicant’s concerns about domestic violence is part of the proceeding before the SCJ.

17For these reasons, I conclude that the only issue in this Application over which the CFSRB has jurisdiction is the allegation that the Respondent did not hear the Applicant’s concerns and did not give her meaningful reasons for its decision not to grant her request for a female worker with specific expertise. The remaining allegations must be dismissed pursuant to subsection 120(8)(a) of the Act.

the applicant’s filing of COURT-RELATED documents

18On January 18, January 25 and January 31, 2019, the Applicant filed additional documents with the CFSRB. Many of these documents are related to the ongoing SCJ proceeding. The Applicant is directed to refrain from filing with the CFSRB documents related to the court proceeding.

order

19All allegations in the Application are dismissed except the following:

Whether the Applicant was heard and given meaningful reasons for the Respondent’s decision not to grant her request for a female worker with specific expertise.

20The Applicant shall not file with the CFSRB any further documents related to the SCJ proceeding.

next steps

21The parties will be contacted by a case processing officer to schedule a pre-hearing to prepare for a hearing on the merits of the allegation set out in paragraph 19 above. The opportunity to participate in mediation will be offered at the pre-hearing.

confidentiality order

22Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Application with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.