SDA v. Children’s Aid Society of Toronto, 2022 CFSRB 15

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SDA Applicant

-and-

Children’s Aid Society of Toronto Respondent

DECISION

Adjudicator: Daniel McSweeney Date: March 23, 2022 Citation: 2022 CFSRB 15 Indexed As: SDA v Children’s Aid Society of Toronto (CYFSA s.120)

WRITTEN SUBMISSIONS

SDA, Applicant, Self-represented Children’s Aid Society of Toronto, Respondent, Simon Fisch, Counsel

INTRODUCTION

1The Applicant filed a Complaint under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched. 1, (the “Act”).

2The Complaint was found eligible pursuant to sections 120(4)4 and 120(4) 5 of the Act: It is alleged that the Applicant was not given the opportunity to be heard and represented when decisions affecting her interests were made, or a chance to be heard when she raised concerns about the services she received; and the Society is alleged to have failed to provide the Applicant with reasons for a decision that affected her interests or the interests of the Children.

3The Applicant is the mother of one daughter, and stepmother of four of her ex-husband’s children (the “Children”).

4The parties attended a Pre-Hearing on February 28, 2022, and mediation was declined by the Applicant. The Pre-Hearing Report identified the Issues/Concerns in the Complaint as follows:

1. The Applicant’s concerns were not heard regarding her allegations of physical abuse by her husband A.M. and the Society did not provide reasons for its actions or failure to act on these concerns;
2. The Applicant’s concerns were not heard regarding her allegations of financial abuse by her husband A.M. and the Society did not provide reasons for its actions or failure to act on these concerns;
3. The Applicant’s concerns were not heard regarding her allegations of emotional abuse by her husband A.M. and the Society did not provide reasons for its actions or failure to act on these concerns;
4. The Applicant’s concerns were not heard regarding her allegations of mental abuse by her husband A.M. and the Society did not provide reasons for its actions or failure to act on these concerns;
5. The Applicant alleges that the CAS should have recognized her rights as a primary caregiver for A.M.’s children as recommended by her Church, the Church of Jesus Christ of Latter-Day Saints; and
6. The Applicant alleges that the CAS acted inappropriately in providing a letter dated April 7, 2017, confirming that the children of her husband A.M were not in the Applicant’s care between June 22, 2016, and February 15, 2017. As a result of this letter, the Applicant was required to repay $13,804.42 in Child Tax Benefits.

5The Pre-Hearing Report indicated that only matters pertaining to whether the Applicant’s concerns had been heard, and whether the Applicant received reasons from the Respondent would be considered at the hearing. The Report also indicated that the CFSRB would not consider the following issues at the hearing:

• Matters that have previously been determined by a Court, including custody and access decisions regarding the children of the Applicant’s former husband A.M.;
• Matters relating to reimbursement of Child Tax Benefit overpayments;
• Matters relating to current CAS involvement and child protection issues related to the Applicant’s former husband A.M.;
• Requests for the CAS to assist the Applicant with coop housing, or obtaining employment; and
• Issues regarding criminal charges against the Applicant’s former husband A.M.

6In a Case Management Direction (CMD) issued after the Pre-Hearing, the parties were directed to provide written submissions and supporting documentation regarding the CFSRB’s jurisdiction to review the Issues/Concerns pursuant to section 120(8) of the Act.

7The Applicant provided documents to the CFSRB by the due date for submissions. The documents did not relate to the issue of jurisdiction; rather, they restated the Applicant’s various Issues/Concerns outlined in her Complaint. The Applicant sent the CFSRB an e-mail on March 21, 2022, indicating that the documents sent to her (presumably the Respondent’s submissions) did not make any sense; however, she did not identify any examples of what did not make sense to her. In addition, the Applicant alleged that there was some conflict of interest; however, she did not elaborate on this concern.

8In the Respondent’s submissions, Counsel argued that the CFSRB did not have jurisdiction to review substantive issues which are or were before the Court. Counsel indicated that the Applicant is seeking a review of orders related to the placement of her ex-husband’s children into his care, and other decisions which do not relate to the Respondent such as issues related to child tax benefits, a police investigation, and possible criminal charges. The Respondent alleged that the Applicant was seeking orders that the Respondent was wrong in the positions it took before the Court in 2017 and 2018. These issues are not within the jurisdiction of the CFSRB.

9The Respondent’s Counsel also submitted that the Applicant was provided with opportunities to be heard on the issues she has identified and has been provided for reasons for the Respondent’s decisions.

THE LAW

10Subsection 120(8) 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

11The Ontario Court of Appeal ruled in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441, 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. In DD the Court found that complaints about how the children’s aid society had handled the temporary placement of the applicant’s children could proceed before the CFSRB. Those complaints “were separate and different from the substantive issues before the court” (para 35).

ANALYSIS

12Section 120(8) of the Act directs that the CFSRB cannot 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”.

13My reading of this section of the Act confirms that the concept of “subject of the complaint” is a broad category that encompasses more than the content of any specific issue raised by a party before the Court. As such, a specific issue may not have been raised in Court proceedings; however, the proceedings may have addressed the broader subject matter included in a complaint.

14The Respondent appended the following documents to its initial Response:

• Statement of Agreed Facts dated March 2017
• Statement of Agreed Facts dated July 2017 (also submitted by the Applicant)
• Statement of Agreed Facts dated April 2018

15Issues 1 – 4 in the Issues/Concerns identified in the Applicant’s Complaint dealt with the Applicant not being heard and not being provided reasons by the Respondent for its actions related to allegations of physical, financial, emotional, and mental abuse of the Applicant by her ex-husband.

16The Statement of Agreed Facts (March and July 2017) made reference to the conflictual relationship (physical and verbal) between the Applicant and her ex-husband, including the impact that the conflict has had on the Children, and the Respondent’s request that the Appellant and her ex-husband engage in couples counselling. In fact, conflict within the couple resulted in the apprehension of the Children in June of 2016. Paragraph 27 highlighted an incident dated March 4, 2017, in which police responded to an argument between the Applicant and her ex-husband. The last paragraph in the July 2017 Statement of Agreed Facts indicates that:

“This order is in the children’s best interests as the children are doing well in their father’s care. A further order of supervision will allow for the Society to continue to assess the ability of Mr. M and Ms. A to provide a stable home for the children in which they are not being exposed to adult conflict/issues between them”.

17The April 2018 Statement of Agreed Facts confirmed that the Applicant has not been in contact with the Children and has not participated in their care. Her ex-husband has been the Children’s sole care provider. It goes on to state that issues of adult conflict were no longer of concern as the Applicant and her ex-husband have been living separately for quite some time.

18The Statements of Agreed Fact confirmed that issues of domestic violence and abuse between the Applicant and her ex-husband were issues that were presented before the Court. The Applicant was a party at various proceedings. She had the opportunity to raise her concerns related to abuse, especially in relation to who would be the most appropriate caregiver to the Children.

19Given the documents before me, I find that issues related to physical, financial, emotional, and mental abuse in the Applicant’s home were placed clearly before the Court on several occasions. As such, the CFSRB does not have the jurisdiction to address Issues/Concerns 1 – 4 in the Complaint.

20Issue/Concern 5 dealt with the Applicant’s concerns that the Respondent did not recognize the Applicant’s rights as a primary caregiver for her ex-husband’s Children as recommended by her Church. The Statement of Agreed Facts dated March 2017 addressed the Respondent’s recommendation that the Applicant’s ex-husband be the primary caregiver for the Children and that the Applicant be a support and secondary caregiver. The Statement of Agreed Facts dated July 2017 also addressed the role that the Bishop played in providing relationship counselling and advice to the Applicant and her ex-husband. For these reasons, I find that the Applicant’s caregiving role was place directly before the Court and that issues of custody were clearly addressed by the Court.

21I also note that the role that the Church played in addressing concerns in the marital relationship were also included in the various Statements of Agreed Facts before the Court. If the Applicant had concerns regarding her caregiving role, and the impact that her faith had on this role, the onus was on her to raise this issue when it was before the Court. For these reasons, the CFSRB does not have jurisdiction to address Issue/Concern 5.

22Issue/Concern 6 dealt with the issue of Child Tax Benefits and the periods of time that the Children were not in the Applicant’s care. Issues of the care and custody of the Children were issues that were before the Court.

23Under section 120(1) of the Act, an individual can put forward a complaint in respect of a service sought or received from a society. I find that the Respondent did not provide service to the Applicant when staff provided the Applicant’s ex-husband a letter regarding the dates that the Children were in his care. In addition, the statement provided by the Respondent Worker to the Applicant’s ex-husband was consistent with the custody order issued by the Court. For these reasons, I find that the Applicant was not in receipt of service in relation to the letter confirming the dates that the Children were in the care of the Applicant’s ex-husband. As such, the CFSRB does not have jurisdiction to address Issue/Concern number 6 in the Applicant’s Complaint.

DISPOSITION

24Based on the reasons outlined above, I find that the CFSRB does not have jurisdiction to address Issues/Concerns 1 – 6 in the Complaint. The Applicant’s Complaint is dismissed in its entirety and will not proceed to a hearing.

25The hearing scheduled for April 12, 2022, is no longer required and therefore the disclosure and filing requirements in the Pre-Hearing Report are voided.

CONFIDENTIALITY ORDER

26Pursuant 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.