PB v Family and Children’s Services of Frontenac, Lennox and Addington, 2022 CFSRB 59

CHILD AND FAMILY SERVICES

REVIEW BOARD

BETWEEN:

PB

Applicant

-and-

Family and Children’s Services of Frontenac, Lennox and Addington

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: December 06, 2022

Citation: 2022 CFSRB 59

Indexed As: PB v Family and Children’s Services of Frontenac, Lennox and Addington (CYFSA s.120)

WRITTEN SUBMISSIONS

PB, Applicant

Self-Represented

Family and Children’s Services of Frontenac, Lennox and Addington, Respondent

Ayana C. Hutchinson,

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 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 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 is receiving. It is alleged that the Society has failed to provide the Applicant with reasons for a decision that affects her interests.

3The Applicant is the mother/step-mother of 4 children who are the subject matter of the Complaint (the “Children”).

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

1. The Applicant alleges that her concerns regarding parental and access, the location of access; impact of access and lack of access on the Children, were not heard by Respondent staff;

2. The Applicant alleges that her concerns that she was not been provided an opportunity to demonstrate her parenting progress with her younger Children and to rekindle the relationship with the Children were not heard by Respondent staff;

3. The Applicant alleges that her concerns regarding false and misleading information which led to the suspension of access were not heard by the Respondent;

4. The Applicant alleges that her concerns that the Children’s voices, emotions, and preferences are being suppressed, ignored and altered were not heard by Respondent staff;

5. The Applicant alleges that she was not provided with reasons as to why access to the Children was suspended by the Valoris child protection agency;

6. The Applicant alleges that she was not provided reasons as to the role of kin in preventing access to the parents and grandparents;

7. The Applicant alleges that her concerns regarding kin’s involvement in access and the negative impact of coaching and kin control of the Children were not heard by the Respondent;

8. The Applicant alleges her concerns regarding the placement of the Children with kin were not heard by Respondent staff;

9. The Applicant alleges that her concerns regarding the negative impact on the Children from the kin’s treatment of them were not heard by Respondent staff;

10. The Applicant alleges that her preferences regarding the placement of the Children were not heard;

11. The Applicant alleges she was not provided with reasons as to why one of the Children was left with kin after the kin indicated that they could not take care of the 3 Children;

12. The Applicant alleges that Respondent staff did not hear her concerns regarding the mental and emotional impact on the Children of separating them;

13. The Applicant alleges that her concerns regarding the denial of disclosure related to the Children were not heard by Respondent staff; and

14. The Applicant alleges her request to have the file moved to their region were not heard by Respondent staff.

5From the documents presented to the CFSRB, it appears as if the Applicant had submitted a similar complaint to the Respondent before submitting the CFSRB Complaint. A meeting between the Applicant and the Respondent was held on June 7, 2022, during which the Applicant had an opportunity to share her concerns. The Respondent agreed to follow-up on the Applicant’s concerns by consulting with several of the Children’s service providers and other collateral sources. Respondent staff also shared the updated Safety Goals with the Applicant. Respondent staff met with the Applicant again on July 12, 2022. On August 22, 2022, the Respondent sent the Applicant a letter which clarified that it did not support contact between the Applicant and 3 of the Children. This decision was based on the Children’s need to work on healing the trauma they experienced.

6The Applicant submitted her Complaint to the CFSRB on August 30, 2022.

7In its Summary Response to the CFSRB Complaint, the Respondent argued that the Applicant’s concerns were before the Criminal Court, as well as in CYFSA child protection proceedings. Access to the Children was limited by the Criminal Court Order that precluded direct or indirect contact between the Applicant and the Children. The Applicant’s application for a variation of this Criminal Court Order was not granted.

8Given the Criminal Court and CYFSA proceedings, the Respondent argued that the CFSRB did not have jurisdiction to review the Complaint as the subject matter of the Complaint was not separate and different from the substantive issues before the Court.

9The Respondent also submitted that it provided the Applicant with its reasoning regarding access to the Children. The Respondent also provided the Applicant with written responses to her complaint to the Respondent on July 5, 2022, and in a follow-up letter dated August 22, 2022.

10In a Case Management Direction (CMD) dated October 6, 2022, issued by the CFSRB, the Applicant was directed to provide written submissions as to whether the issues in the CFSRB Complaint were separate and different from the substantive issues before the Court.

11The Applicant’s submissions reiterated the Issues/Concerns outlined above. The Applicant indicated that the issues were not before the Court.

THE LAW

12Section 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

13The 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

14My reading of section 120(8) 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.

15The Respondent provided the following documents along with its Summary Response:

• Applicant’s complaint of April/May/June 2022

• Response to the Applicant’s complaint dated July 5, 2022

• Follow-up response to complaint dated August 22, 2022

• Applicant’s Release Order dated August 12, 2021

• Court Endorsement dated September 15, 2022

• Oder dated February 3, 2022, regarding B

• Order dated February 3, 2022, regarding M and G

16I note that the Release Order forbade direct or indirect communication between the Applicant and the Children who are subject to this Complaint. Therefore, I find that any issues related to the restriction of communication between the Applicant and the Children are issues that are before the Court.

17The Final Order dated February 3, 2022, regarding the Child “B” and another Final Order regarding Children “G” and “M” addressed the following issues:

• access between the Children and their parents

• restriction of any communication between either parent and the Children

• access between the Children

• order not to discuss the criminal and child protection charges

• access to education and community supports for the Children

• disclosure between the care providers and service providers

• the Applicant’s access is at the discretion of the Respondent; “B’s” access to his father is at the discretion of the Respondent taking into account “B’s” wishes

• requirement for access by “B’s” father to be supervised

• the requirement for the Applicant to work cooperatively with the Respondent

• removal of any social media posts disclosing that the Children are the subject of child protection proceedings

18These Orders address custody and access issues.

19I note that s. 74(2) of the Act identifies the criteria for determining that a child is in need of protection. The criteria include physical, emotional harm, neglect, sexual abuse, failure to provide treatment to a child or meet her/his developmental needs. Section 74(3) sets out the best interests of the child criteria which decision-makers uses in making decisions around the placement of children.

20In this case, the Applicant and Respondent have been before the Court in various child protection proceedings. The Respondent has provided copies of Final Orders from Justice Robertson. Based on the criteria in s. 74 which directs decision-makers to consider the best interests of the child; and based on the finding that the Children were in need of protection, I find that issues related to access, custody, the health and well-being and best interests of the Children were placed squarely before the Court and were considered by Justice Robertson in the Final Order as required by the CYFSA. These issues formed the subject matter of the Applicant’s Complaint.

21I also note that the Applicant has made an unsuccessful Motion regarding the lifting of communication prohibition to the Criminal Court. As part of this Motion the Applicant could have raised her concerns with the current access arrangements, the kin’s impact on access, and access to other family members. I also note that the Applicant submitted that the Criminal Court Judge indicated that he would review an access plan if the Applicant and the Respondent could work on one. The Respondent maintained that it was following the conditions imposed by the Criminal Court in relation to access and communication. While the CYSFA proceedings provide discretion to the Respondent regarding access, I concur with the Respondent that staff continue to be bound by the non-communication order from the Criminal Court in the absence of a new access pan.

22As such, I find that the issues of the Applicant’s access to the Children, and the challenges she experienced in relation to access have been before both the Criminal Court and have been the subject of CYFSA proceedings on several occasions.

23The Applicant submitted that the kin’s role in interfering with the Children, access, removing sentimental items, limiting the Children’s access to family and friends; and providing false information to the Children’s specialists are issues that were not before the Court. I disagree with this position as the granting of custody to the kin providers was an issue that was decided by Justice Robertson in the Final Orders. The Applicant was a party to the Court proceedings and could have raised any of her concerns with the proposed kin providers and their behaviour at Court.

24The Applicant submitted that her concerns that the Respondent did not acknowledge the work she had done to improve herself and meet the needs of the Children was an issue that was not before the Court. I disagree, as the Applicant’s parenting capacity was determinative to any decision regarding custody and access. The Court would have had to reflect on the capacity of the Applicant to parent the Children as part of its assessment of whether the Children were in need of protection, and what placement was in their best interests.

25The Applicant submitted that her concerns regarding the voice of the Children not being heard were not before the Courts. I disagree as I note that the Children were represented by the Office of the Children’s Lawyer (OCL) throughout the proceedings. Should the Children’s Counsel be concerned with the alleged role of the kin in suppressing the Children’s voices or leading the Children, these issues would have been raised during the child protection proceedings by the OCL or by the Applicant.

26The Applicant alleged that documents presented at Court were not fair and balanced. The Applicant was represented by Counsel during the proceedings. I find that the Court is the most appropriate forum for the Applicant to raise any concerns regarding disclosure or documentation made to the Court. Similarly, I find that the Applicant’s concern related to the kin’s alleged speaking to the Children about the criminal proceedings which she alleged was in contravention of the Court Order was an issue that was best addressed by the Court and not within the jurisdiction of the CFSRB or the Respondent.

27Given the evidence before me, I find that that Issues/Concerns 1 – 13 were issues that were placed squarely before the Court and that none of these Issues/Concerns were separate or different than issues before the Court. In CYFSA proceedings, the Court is tasked with assessing whether a child is in need of protection, and in determining what is in the best interests of the child. The Applicant’s Complaint focuses on whether the Children are in need of protection, and what decisions and actions are in the best interests of the Children. As such, I find that the subject of the Complaint are issues that were and currently are before the Criminal and CYFSA Courts.

28I considered Issue/Concern 14 which dealt with the Applicant’s request to have the file transferred to a jurisdiction that is closer to their residence. I find that this issue was not one that would have been considered by the Court in carrying out its mandate to protect the health, safety, and well-being of the Children. I find that this issue is separate and different than the issues before the Court and therefore it can move on to the next step in the review process.

DECISION

29For the reasons identified above, I find that Issues/Concerns 1 – 13 in the Complaint are issues that were placed squarely before the Court. As such, the CFSRB is precluded from addressing these Issues/Concerns pursuant to s. 120(8) of the Act. These issues are therefore dismissed.

30Issue/Concern #14 is not an issue that was placed before the Court and therefore can move on in the review process.

31The CFSRB will contact the parties regarding next steps.

CONFIDENTIALITY ORDER

32Pursuant 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.