KK v Children’s Aid Society of Ottawa, 2022 CFSRB 2

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

KK

Applicant

-and-

Children’s Aid Society of Ottawa

Respondent

DECISION

Adjudicator: Daniel McSweeney
Date: January 18, 2022
Citation: 2022 CFSRB 2
Indexed As: KK v Children’s Aid Society of Ottawa (CYFSA s.120)

WRITTEN SUBMISSIONS

KK
Applicant
Self-represented

Children’s Aid Society of Ottawa, Respondent
Mark Hecht, Counsel

INTRODUCTION AND BACKGROUND

1This is an Application (“Complaint”) filed with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

2The Complaint was found eligible for review under sections 120(4) 4 and 120(4) 5 of the Act: The Society is alleged to have failed to provide the Applicant with reasons for a decision that affects her interests; and the Society has failed to provide the complainant with reasons for a decision that affected her interests.

3The Applicant is mother of two daughters (the “Children”).

4The Applicant identified the following Issues/Concerns in her Complaint:

• The Applicant alleges that the Respondent and Worker (KW) have failed to communicate or work with the Applicant since approximately 2015 especially in relation to access and communication with the Children;

• The Applicant alleges that she has not been provided with information by the Respondent regarding where the Children are or the outcome of any child protection decisions (placement in foster home; adoption) relating to the Children and why the Respondent staff have not explained why they are treating information regarding the Children with such secrecy;

• The Applicant requests that Supervisor LC and Worker KW be removed from her file; and

• The Applicant requests that her files be forwarded to her by e-mail.

5In its Summary Response, the Respondent argued that the CFRSB did not have jurisdiction to address the Issues/Concerns in the Complaint as the Children were made Crown Wards without Access pursuant to an Order dated August 5, 2015.

6The Respondent indicated that Section 120(8) of the Act indicates that the Board cannot hear an Application once an Order has been made by the Court. As such, the CFSRB does not have jurisdiction to review the Complaint.

7In a Case Management Direction (CMD) dated December 15, 2021, parties were directed to provide submissions on 2 questions:

1. Are there any issues in the current Complaint that are not before the Court or have not been decided by the Court?

2. Does the CFSRB have jurisdiction pursuant to s. 120(8)(a) to address the Issues/Concerns outlined in the Applicant’s Complaint?

8In its response to the CMD, the Respondent argued that all the issues raised in the Complaint have been decided by a Crown Wardship No Access Order (CWNA). CWNA Orders sever all parental rights and a child welfare organization no longer has a requirement to communicate further with the biological parents as this would interfere with the permanency planning for the child. In addition, at a certain age a child would need to consent to have a biological parent introduced into her/his life. The Respondent cited 2 Court decisions in support of its position.

9The Respondent argued that, in this case, the CWNA Order removed the Society’s obligation to work or communicate with the Applicant. Respondent staff are providing service to the Children and not the biological mother and therefore the Applicant cannot ask for Respondent staff to be removed from the file.

10The Respondent acknowledged that the biological mother has a right to disclosure and indicated that it is prepared to provide redacted disclosure with information about the father and the Children removed pursuant to Part X of the Act.

11The Applicant submitted that she never received any Court papers when the Children became Crown Wards in 2015. Respondent staff did not share any resources with the Applicant, did not provide her with supports, and intimidated her. Respondent staff did not facilitate communication or access to the Children.

12The Applicant indicated that she did not understand why her rights and her Children’s rights were violated and continue to be violated.

THE LAW

13Section 120 of the Act provides that, if a person has “a complaint in respect of a service sought or received from a society [and the complaint] relates to a matter described in subsection (4), the person who sought or received the service may decide” to make a complaint to either the society or the Child and Family Services Review Board (“CFSRB”).

14A “parent” in the Act is defined as:

a. the person who has lawful custody of the child; or

b. if more than one person has lawful custody of the child, all of the persons

who have lawful custody of the child, excluding any person who is unavailable or unable to act, as the context requires.

15Section 15(2) of the Act ensures that:

“children and young persons and their parents have an opportunity 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.”

16Section 120(8) of the Act states that the:

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

17The 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

18I considered the jurisdictional issues associated with the Complaint.

19Section 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”.

20My 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.

21The Respondent appended the following documents to its initial Response:

• Final Order making the Children Crown Wards with No Access dated November 16, 2015

• Affidavit of Service of Final Order on the Applicant dated November 18,2015

• E-mail to Applicant from the Respondent indicating that an Order for Substituted Service by e-mail was granted to the Respondent, with an attached copy of the Final Order

22The Final Order confirmed that the parental rights of the Applicant have been severed with no access. As such, I find that the issue of the Applicant’s parental rights (or removal of them) was an issue that was decided by the Court. The issue of the Applicant’s ongoing communication with and access to the Children was also addressed in the Final Order and includes the provision of information to the Applicant regarding the placement of the Children.

23I also concur with the Respondent’s analysis that, pursuant to the Final Order, it is not required to further communicate with the Applicant as she is no longer in receipt of services.

24For these reasons, I find that Issues/Concerns 1 and 2 were placed clearly before the Court and the CFSRB does not have jurisdiction to review these 2 Issues.

25Given that the Applicant has had her parental rights severed with no access; she is no longer in receipt of services from the Applicant and therefore she is ineligible to have her Complaint addressed pursuant to s. 120(4) and (5) of the Act. As such, the CFSRB cannot review Issue/Concern 3 in the Complaint.

26With respect to the disclosure of her file, I note that the Respondent has agreed to provide the Applicant with a redacted copy of her file. The CFSRB does not have jurisdiction to monitor or enforce issues related to disclosure. If the Applicant has concerns regarding the disclosure received from the Respondent, she can forward these concerns to the Office of the Information and Privacy Commissioner (www.IPC.on.ca) who is responsible for issues of access to information.

DECISION

27For the reasons identified above, the Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

28Pursuant 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.