KAC v. Family and Children’s Services Niagara, 2022 CFSRB 58

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

KAC

Applicant

-and-

Family and Children’s Services Niagara

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: November 30, 2022

Citation: 2022 CFSRB 58

Indexed As: KAC v Family and Children’s Services of Niagara (CYFSA s.120)

INTRODUCTION AND BACKGROUND

1This is an Application 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 CFSRB found the Application eligible to proceed under sections 120(4)4 and 120(4)5 of the Act: it is alleged that the Applicant was not heard and represented when decisions affecting her interests were made and to be heard when she had concerns about the services she is receiving; and the society is alleged to have failed to provide the Applicant with reasons for a decision that affected her interests.

3The Applicant is the mother of a daughter and son (the “Children”).

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

1. The Applicant was not provided with reasons as to why the Children were apprehended by the Respondent;

2. The Applicant alleges that Respondent staff did not hear the Applicant’s concerns regarding the apprehension of the Children including the evidence and process used by Respondent staff; and the Applicant’s arguments against the apprehension;

3. The Applicant alleges that her concerns regarding the Children’s health, safety, and education were being dismissed and ignored by Respondent staff; including concerns relating to the placement of the Children after they were removed from her care;

4. The Applicant alleges that her concerns regarding reduced access and supervised access were not heard by Respondent staff; and

5. The Applicant alleges that her concerns regarding the violation of her rights were not heard by the Respondent.

5In its September 29, 2022, Response, the Respondent stated that the CFSRB lacked jurisdiction to review the Application because the issues in the Applicant were before the Superior Court of Justice (File FC-22/637) in a child protection proceeding addressing custody and access issues. The Respondent did not submit any documents from Court regarding the proceeding.

6In a Case Management Direction (CMD) dated November 7, 2022, the Respondent was asked to provide copies of all relevant Court documents and orders to the CFSRB and the Applicant. The Applicant was also directed to make written submissions to the CFSRB on whether the issues in the Application were separate and different from the substantive issues before the Court.

7The Respondent provided the following documents in response to the CMD:

• Form 10 Answer
• Care Plan Answer 33B.1
• Motion Form 14B Urgent
• Settlement Conference Form 17D and 17F
• Withdrawal Form 12
• Final Order 25

8The Applicant provided submissions in response to the CMD. The submissions did not address whether the Issues/Concerns in the Application were issues that have been or were before the Court. The submissions outlined the Applicant’s concerns with the process and content of the apprehension of the Children; the Applicant’s interactions with Respondent staff; and the Applicant’s demands for remedies which fell outside the remedies available to the CFSRB pursuant to s. 120 (4) of the Act.

THE LAW

9Section 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.

10Rule 21.2 of the CFSRB’s Rules of Procedure requires a children’s aid society relying on section 120(8)(a) of the Act to provide “all relevant documents and any Court orders”.

11The Ontario Court of Appeal ruled in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441 that the existence of child protection proceedings does not bar the CFSRB from reviewing complaints about services received from a children’s aid society if the complaints are separate and different from the substantive issues before the court.

ANALYSIS

12I considered whether the CFSRB had jurisdiction to review the Application pursuant to the exclusion in s 120(8) (a) of the Act which indicated that the CFSRB could not 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 documents presented by the Respondent and Applicant confirm that all 5 of the Issues/Concerns identified in the Complaint have been before the Court.

15The Applicant’s Answer dated November 15, 2022, provides great detail (13-page narrative) regarding the Applicant’s concerns with the apprehension of the Children and her treatment by Respondent staff and police. The Answer speaks of her concerns with:

• the apprehension process and its physical and mental health repercussions on her and the Children;
• the Respondent’s faulty rationale for the apprehension which the Applicant alleged was unlawful;
• the alleged improper actions of Respondent staff during and around the time of the apprehension, including concerns with the evidence the Respondent used to support the apprehension;
• issues of custody and supervised access to the Children;
• the Applicant’s concerns with the person claiming to be the Children’s father, and her concerns regarding his access to the Children;
• the Applicant’s concerns with the Children’s care, education, and treatment while in the protection of the Respondent;
• the Applicant’s concerns that her rights were violated by the Respondent;
• the difficulties the Applicant experienced when trying to communicate and provide information to Respondent staff, including reports of verbal abuse; and
• the Applicant’s concerns that Respondent staff were unresponsive and uncooperative with her, and communication to resolve issues has been unproductive.

16The Final Order (unsigned) dated September 1, 2022, echoed many of the Applicant’s concerns, and ordered the immediate return of the Children as they had been wrongfully removed.

17As evidenced by the Applicant’s Answer and the Final Order, I find that the Court has had before it evidence related to the apprehension of the Children, including the Applicant’s concerns with the process and evidence used to apprehend the Children. The Court also considered the Applicant’s concerns regarding the apprehension of the Children; the Children’s health and safety while in the care of the Respondent; her access to the Children; and the violation of the Applicant’s and the Children’s rights. Finally, the Court had before it evidence that Respondent staff ignored and disregarded the Applicant’s concerns when she attempted to provide such evidence and failed to consider the Applicant’s concerns in their decisions.

18Upon review of the Application and documents presented to me, I could not find any remaining issues that were separate and different from the issues that were presented to the Court.

19Based on my review, I find that all 5 of the Issues/Concerns in the Applicant’s Complaint have been before the Court and were considered by the Court. As such, the CFSRB is precluded from addressing these Issues/Concerns pursuant to s. 120(8) of the Act.

DECISION

20For the reasons identified above the Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

21Pursuant 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.