MGR v. Children’s Aid Society of Sudbury and Manitoulin, 2023 CFSRB 19

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MGR

Applicant

-and-

Children’s Aid Society of Sudbury and Manitoulin

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: February 22, 2023

Citation: 2023 CFSRB 19

Indexed As: MGR v Children’s Aid Society of Sudbury and Manitoulin

(CYFSA s.120)

WRITTEN SUBMISSIONS

Children’s Aid Society of Sudbury and Manitoulin, Respondent

Patricia G. Marcuccio,

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”).

background

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 Respondent has failed to provide the Applicant with reasons for decisions that affected her interests.

3The Applicant is the mother of a son (the “Child”).

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

1. The Applicant alleges that she was not provided with reasons as to why Respondent staff initiated contact with her on January 28, 2022;

2. The Applicant alleges that she was not provided with reasons by Respondent staff as to why the Child’s father could not have overnight access; and access in his home; despite the Respondent being aware that a historical incident against the father was reported maliciously;

3. The Applicant alleges that she was not provided with reasons for why Respondent staff began an investigation and why the investigation has dragged on for over one year;

4. The Applicant alleges that Respondent staff failed to hear her concerns regarding her need for post-delivery support by the Child’s father;

5. The Applicant alleges she was not provided with reasons as to why Respondent staff threatened to apprehend the Child if she and the Child’s father did not comply with requests by Respondent staff;

6. The Applicant alleges that she and the Child’s father were not provided with information on which program they want the Child’s father to take despite their requesting this information;

7. The Applicant alleges that Respondent staff did not hear her suggestions on programming for the Child’s father;

8. The Applicant alleges that Respondent staff did not provide her with an answer why the safety plans did not include sexual deviancy interventions if this was the Respondent’s main concern with the Child’s father;

9. The Applicant alleges she was not provided with information regarding the Respondent’s child protection concerns outside the sexual deviancy concerns;

10. The Applicant alleges that Respondent frontline staff and supervisors have not heard her concerns regarding the impact that their intervention/demands have had on her and the Child’s father;

11. The Applicant alleges that she was not provided with reasons as to why she and the Child’s father still do not have unsupervised access; and

12. The Applicant alleges her disclosure request were not heard by Respondent staff.

5In its Summary Reply, the Respondent argued that the subject matter of the Complaint was currently before the Court in the form of child protection proceedings, and, as such, the CFSRB was prohibited from reviewing the Complaint pursuant to s. 120(8) of the Act. A Supervision Order was granted by Justice Lische which addressed the custody of the Child and provided the Respondent discretion related to access by the Child’s father. The Respondent attached a copy of the Order to its Summary Reply. The issues remain before the Court as a settlement conference will be held in March of 2023.

6The Respondent found the Child in need of protection because of risk of sexual harm associated with verified concerns with the biological father which occurred when he was an adolescent.

7The Respondent indicated that it provided the Applicant with an opportunity to be heard and Respondent Frontline Staff and Supervisors have answered the Applicant’s questions with detailed explanations. The Respondent indicated that the Applicant was heard and provided with reasons, but that she disagreed with the reasons.

8In a Case Management Direction dated January 27, 2023, the Applicant was directed to provide submissions on 2 questions: were the Issues/Concerns in the CFSRB Application currently before the Court of have they been decided by the Court in the past?; and were there any issues in the current Application that are not issues that have been before the Court or have not been decided by the Court in the past? The Applicant did not provide submissions.

9The Respondent was also provided with an opportunity to provide additional Court documents in support of its argument that the CFSRB did not have jurisdiction to review the Complaint and provided the following documents:

• Child Protection Application dated July 18, 2022

• Plan of Care dated July 18, 2022

• Notice of Motion dated July 18, 2022

• Notice of Motion

• Affidavit of Service dated July 21, 2022

• Affidavit of Danica Gosselin-Leger dated July 18, 2022

• Answer and Plan of Care of Child’s Mother dated August 9, 2022

• Answer and Plan of Care of Child’s Father dated September 1, 2022

• Interim Without Prejudice Supervision Order of Justice Liche dated July 19, 2022

THE LAW

10Section 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

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

12To begin with, I note that Issue/Concern 12 dealt with the issue of the Respondent’s response to the Applicant’s disclosure request. The CFSRB does not have jurisdiction to address requests related to disclosure. The Office of the Information and Privacy Commissioner is responsible for such requests. Therefore, the CFSRB does not have the jurisdiction to review Issue/Concern 12.

13I reviewed the Court documents provided by the Respondent (listed above) and considered Issues/Concerns 1 – 11 in the Complaint.

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 Child Protection Application addressed the Respondent’s concerns regarding the safety of the Child in relation to both parents, including concerns regarding the Child’s father’s past sexual conduct. The Application and the Interim Supervision Order addressed issues related to custody; the requirement for supervised access on the part of the father; the requirements for both parents to attend counselling and parenting support programs; requests to be furnished with consents to assess any risks the father may pose; and consents to assess both parents’ access to supportive services.

16The Affidavit of Worker DGL outlined the Respondent’s concerns with parenting, and specific concerns with the Child’s father’s sexual and criminal behaviour in the past which led to the Respondent’s request for a Temporary Supervision Order. The Affidavit discussed the Respondent’s requirements (safety plan) and expectations of both parents. It addressed the ongoing conflict between the parents and Respondent staff which led the Respondent to seek Court intervention rather than continued voluntary work with the parents. The Affidavit also discussed the father’s failure to provide consents which caused delays in assessing the risks to the Child and finalizing the Respondent’s position regarding the father’s access. Finally, the Affidavit clearly outlined the Respondent’s position in relation to the risks for the Child; safety planning; and expectations to mitigate any risks.

17The Applicant submitted an Answer and Plan of Care in response to the Respondent’s Application and Worker’s Affidavit. The Applicant had the assistance of Counsel in the preparation of her Answer. The Answer provided the Applicant with an opportunity to clarify with the Court any concerns with the Respondent’s documents and allegations. The Answer addressed the Applicant’s allegations that the Respondent refused to provide the parents a list of what programs and services they should enrol in until the Respondent obtained the father’s criminal disclosure. The Answer outlined the impact that the access conditions was having on the Applicant’s physical and mental health. It also addressed the Applicant’s understanding that the weekly home visits would end in two months.

18The father’s Answer and Plan of Care, prepared with the assistance of Counsel, outlined the counselling and programming attended by both parents; it put forward his desire for an Order that the Child be returned to his care without supervision or subject to 6 months’ supervision; or to be granted unsupervised access to the Child. The Answer also provided the Child’s father an opportunity to address concerns he had with the conditions and documents the Respondent submitted to Court, including his response to allegations of inappropriate sexual conduct with children while he was young.

19Justice Lische issued a Temporary Supervision Order with terms on July 19, 2022, which was based on the Respondent’s Application and staff Affidavit; as well on Answers by the Applicant and the Child’s father. These documents outlined the Respondent’s history with both parents, the Respondent’s concerns for the safety of the Child; the Respondent’s requirements for a safety plan for the Child; and the expectations required of both parents to have the supervision conditions lifted.

20I find that Issues/Concerns 1 – 11 were placed squarely before the Court and were considered by Justice Lische. As such, the CFSRB is precluded from reviewing these Issues/Concerns pursuant to section 120(8) of the Act.

21Based on my review of the documents before me, and given the Applicant’s failure to provide submissions to the contrary, I find that the Issues/Concerns in the Complaint were not substantially separate and different from the issues before the Court.

DECISION

22For the reasons identified above, I find that Issues/Concerns 1 – 11 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.

23I also find that the CFSRB does not have the jurisdiction to address disclosure issues. As such, Issue/Concern 12 is dismissed.

CONFIDENTIALITY ORDER

24Pursuant 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.