AH-W v. Children’s Aid Society of the Districts of Sudbury and Manitoulin, 2023 CFSRB 104

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AH-W Applicant

-and-

Children’s Aid Society of the Districts of Sudbury and Manitoulin Respondent

DECISION

Adjudicator: Daniel McSweeney Date: December 11, 2023 Citation: 2023 CFSRB 104 Indexed As: AH-W v Children’s Aid Society of the Districts of Sudbury and Manitoulin (CYFSA s.120)

WRITTEN SUBMISSIONS

Children’s Aid Society of the Districts of Sudbury and Manitoulin, Respondent Renée T. Costantini, 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 Complaint 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; and it is alleged that the Society has failed to provide the Applicant with reasons for a decision that affected her interests.

3The Applicant is the mother of 2 children (the “Children”). The Applicant raised the following Issues/Concerns in her Complaint:

1. The Applicant alleges that she was not provided with reasons for the removal of the 2 Children by the Respondent;
2. The Applicant alleges that she was not provided with reasons as to why her parents were not allowed to care for the Children after their removal from her care and were not provided with access to the Children; and
3. The Applicant alleges that Respondent’s staff did not hear her concerns with her son being placed in the care of her step-sister.

4In the Application, the Applicant indicated that the concerns described in her Application were currently before the Court.

5In its Summary Response to the CFSRB Complaint, the Respondent argued that the complaints and allegations in the Compliant (placement and access) are matters that are currently before the Court or have been decided by the Court. As such, the Complaint should be excluded from review as the CFSRB does not have jurisdiction to address these issues. The Respondent provided the following Court documents in support of its position pursuant to Rule 21:

• Undertaking, October 10, 2023
• Endorsement, October 13, 2023
• Temporary Order, October 13, 2023
• Affidavit of Worker CV, October 23, 2023
• Answer and Plan of Care, November 2, 2023

6On November 22, 2023, the CFSRB issued a Case Management Direction directing the Applicant to make written submissions on whether the issues in the Complaint were separate and different from issues before the Court on or before November 2, 2023. The Applicant did not provide any submissions.

THE LAW

7Section 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

8Rule 21.2 in the CFSRB Rules of Procedure indicates:

Where the society take the position that the CFSRB cannot conduct a review because the subject of the application is:

a. an issue that has been decided by the Court or is before the Court; or b. subject to another decision-making process under the CYFSA, 2017 or the Labour Relations Act, 1995,

the Society must provide submissions in support of its position and attach all relevant documents and any Court orders to their response.

9The 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

10The Applicant did not provide submissions regarding the jurisdictional issue. As such, my decision is based on the Respondent’s submissions and the documents provided by the Respondent.

11My 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.

12The evidence before me is that the Applicant’s Issues/Concerns associated with the apprehension of the Children; their placement with the Applicant’s step-sibling; and issues related to placement with the grandparents and their access to the Children were placed squarely before the Court.

13The Affidavit of Worker CV dated October 12, 2023, at paragraph 54 provided the Respondent’s rationale for denying placement of the Children with their grandparents.

14The Endorsement sheet dated October 13, 2023, outlined the Respondent’s concerns regarding allegations of physical abuse with criminal charges pending. The Endorsement indicated that the mother consented to the Custody Order on an interim, without prejudice basis. The Endorsement also indicated that access to the Children shall be at the discretion of and be supervised by the Respondent.

15The Undertaking indicated that the Applicant was charged with assault with a weapon and forcible confinement and that the Applicant should not have contact with one of the Children.

16The Answer and Plan of Care submitted to the Court by the Applicant dated November 2, 2023, addressed the following issues: the Applicant’s desire for her parents to have temporary custody of the Children; access to the Children by the Applicant; the Applicant’s consent to have the Children placed with her step-sister; the Applicant’s concerns with her step-sister’s care of the Children; the denial of access to both Children by the Respondent; and the Applicant’s concerns that the Respondent’s behaviour is causing the Children emotional harm.

17Based on my review of the documents and the Respondent’s submissions, I find that all 3 Issues/Concerns in the Applicant’s Complaint have been placed squarely before the Court. As such, the CFSRB does not have jurisdiction to review the Issues/Concerns pursuant to s. 120(8) of the Act.

DECISION

18For the reasons identified above, I find that the CFSRB does not have jurisdiction to review Issues/Concerns in the Complaint.

19The Application is therefore dismissed in its entirety.

CONFIDENTIALITY ORDER

20Pursuant 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.