FB v. Family and Children’s Services Niagara, 2023 ONCFSRB 95

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

FB

Applicant

-and-

Family and Children’s Services Niagara

Respondent

DECISION

Adjudicator: Malcolm M. MacFarlane

Date: November 16, 2023

Citation: 2023 CFSRB 95

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

WRITTEN SUBMISSIONS

FB, Applicant

Self-represented

Child and Family Services of Niagara, Respondent

Chris Etherden, Counsel

Introduction

1This is an Application filed August 10, 2023 with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act (CYFSA), 2017, SO 2017, c.14, Sched.1 (the “Act”).

2The CFSRB found the Application was eligible to proceed under sections 120(4)4 and 120(4)5 of the Act. On August 25, 2023, the Respondent responded to the Application. It was submitted by the Respondent that the concerns set out in the Application were the same concerns that were set out in the Applicant’s affidavits before the Court in the Child Protection Proceedings. This raised the question as to whether the CFSRB is barred from reviewing the Application by section 120(8)(a) of the Act.

3In a Case Management Direction, the parties were directed to provide written submissions on whether the issues in this Application were separate and different from the substantive issues before the Court.

4On September 5, 2023 the Applicant submitted a response. On September 8, 2023, the Respondent submitted its response with a number of Court documents attached including several copies of the Applicant’s Answer and Plan of Care document dated August 17, 2023 and a Settlement Conference Brief dated August 26, 2023.

5In reviewing these submissions and rendering a decision, my task is not to make any decision on the merits of this Application. My task is only to make a finding regarding whether the issues in this matter are before the Courts and whether the CFSRB has jurisdiction to review this compliant.

BACKGROUND

6The Applicant is the mother of a male Child age 18 months who was apprehended by the Respondent on August 10, 2023 due to concerns that the Child was malnourished. A Protection Application was filed with the Court on August 14, 2023 and a hearing was held by the Court on August 15, 2023. At that time in a temporary order the Court ordered the child be placed in the care of the Respondent with supervised access to the mother at the discretion of the Respondent.

7The Applicant identified the following concerns in her August 10, 2023 Application as follows:

• The Applicant alleges she was not heard by the Respondent regarding her concerns about the Child being apprehended and was not heard when decisions were affecting her interests were made involving the apprehension of the Child.

• The Applicant alleges she was not given reasons by the Respondent for their decision to apprehend the Child.

THE LAW

8Section 120(8)(a) of the Act states:

The CFSRB 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.

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

10I considered whether the CFSRB had jurisdiction to review the Applicant’s current Application.

11I reviewed the initial Application. I found that most of the narrative focused on the events leading up to the apprehension of the Child. Discussion focused on the Respondent’s concerns that the Child was malnourished, the Respondent’s requirement that the Child be seen by a physician, the physician’s findings regarding the Child’s development, and the Respondent’s decision to apprehend the Child rather than permitting the Applicant to take the Child to a hospital for further assessment and treatment.

12I reviewed the Answer and Plan of Care and Settlement Conference Brief provided by the Respondent. I found that the description of the issues in the Answer and Plan of Care under the heading Current Involvement are substantially the same as the issues raised by the Applicant in her Application and describe the circumstances and findings of the Respondent’s investigation into concerns that the Child was malnourished, as well as the decision-making process leading to the Child’s apprehension.

13In reviewing the Settlement Conference Brief, I again found that the issues focused on the Child’s malnourishment and the investigation and decision to apprehend the child.

14I reviewed the Applicant’s Response. The Applicant argues that the issues before the Court revolve around having the Child returned to their care, while the issues in the Application before the CFSRB revolve around not being heard or given reasons by the Respondent. The Response then proceeds to argue that there was no risk of physical or emotional harm to the Child, the Response again reviews the details surrounding the investigation and apprehension, the Applicant argues that the Respondent should have taken a course of action other than immediate apprehension, and the Applicant raises the impact on the Child and the relationship between the Applicant and the Child of separation due to the apprehension.

15I find that the issues regarding which the Applicant alleges they were not heard are issues revolving around the investigation and decision to apprehend the Child due to concerns that the Child was malnourished. I find that these issues including the Applicant’s argument regarding whether the Child is at risk of physical or emotional harm are squarely before the Court. I conclude that the most appropriate forum for the Applicant’s concerns to be heard and for the Respondent to provide the Applicant with reasons for their decisions and actions is before the Court.

16In reviewing the documents before me, I do not find any issues that are not currently before the Court that the CFSRB would have jurisdiction to address pursuant to the judgement of the Ontario Court of Appeal noted in paragraph 9 above.

DECISION

17The CFSRB finds that it has no jurisdiction to deal with the concerns as set out above since all those concerns have been or are being dealt with by the Court. The CFSRB is barred from reviewing the Application by section 120(8)(a) of the Act.

ORDER

18The Application is dismissed.

CONFIDENTIALITY ORDER

19Pursuant 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.