MF v. Family and Children’s Services Niagara, 2024 CFSRB 100

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MF

Applicant

-and-

Family and Children’s Services Niagara

Respondent

DECISION

Adjudicator: Catherine Bickley

Date: September 19, 2024

Citation: 2024 CFSRB 100

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

WRITTEN SUBMISSIONS

MF, Applicant

Self-represented

Family and Children’s Services Niagara, Respondent

Paul Heinen, Counsel

Introduction

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.

3The Respondent then challenged the CFSRB’s jurisdiction to review the Application on the basis that the Application is “ineligible for review by operation of subsection 120(8)(a)” of the Act, and referenced a child protection proceeding before the Superior Court of Justice (“the Court”).

Issue

4Are the issues in the Application separate and different from the substantive issues before the Court?

Result

5I find that some issues in the Application are separate and different from the substantive issues before the Court. Those issues may proceed to a hearing. The remainder of the Application is dismissed.

Analysis

6In December 2023, the Respondent removed the Applicant’s child from her care. The child was first placed in foster care then moved to a kinship placement in February 2024.

7The Court of Appeal for Ontario (“Court of Appeal”) ruled in Children’s Aid Society of Waterloo v. D.D, 2011 ONCA 441 (“D.D.”) 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.

8There are many similarities between the complains in the current Application and the complaints raised by the Applicant in D.D.

9In D.D., the Court of Appeal decided that complaints about “the manner in which the CAS handled the temporary placement of [the Applicant’s] children while the protection application made its way through the courts … were separate and different from the substantive issues before the court.”

10The Court of Appeal explained further, at paragraph 35, that,

The court process would consider the best interests of D.D.’s children on a permanent, ongoing basis. D.D.’s complaints related to the temporary treatment and placement of her children during the time that the court process was ongoing, including the failure to place her children with willing family members, the refusal to give any reason why her children were not placed with family and details in relation to the exercise of her access to her children.

11Finally, the Court of Appeal concluded, at paragraph 36, that the CFSRB had jurisdiction over D.D.’s complaints, reasoning as follows:

The complaints that D.D. brought to the CFSRB did not relate to the protection application per se and, indeed, would in all likelihood be considered irrelevant to it. Her complaints related to the manner in which the CAS delivered its services and its failure to address her complaints.

12As in D.D., the current Application raises issues specific to the child protection proceeding, such as the reasons the child was removed from the Applicant’s care. Those are substantive issues before the Court and thus outside the jurisdiction of the CFSRB.

13The current Application, like D.D., also raises issues regarding the wellbeing of the Applicant’s child while in foster care, the length of time it took for the child to be moved from foster care to a kinship placement, and the Respondent’s decisions regarding the frequency, location, and length of visits between the Applicant and her child. These are exactly the type of issues that the Court of Appeal found in D.D. were within the CFSRB’s jurisdiction.

14The child’s difficulties in foster care are mentioned in some of the Court documents. The mere mention of those difficulties does not, however, transform the Applicant’s concerns about her child’s wellbeing in foster care into a substantive issue before the Court.

Conclusion

15For the reasons set out above I find that issues regarding the wellbeing of the Applicant’s child in foster care, the length of time that it took for the child to be moved to a kinship placement, and the Respondent’s decisions regarding the frequency, location, and length of visits between the Applicant and her child are separate and different than the substantive issues before the court. As a result, the Applicant’s complaints regarding those issues are within the CFSRB’s jurisdiction and will proceed to a hearing.

Next Steps

16The CFSRB will first schedule a full day videoconference Pre-Hearing during which the parties will be offered the opportunity to participate in mediation facilitated by a CFSRB member. If mediation is declined, the Pre-Hearing will be used to prepare for a hearing.

Order

17The Application will proceed to a hearing on the issues set out in paragraph 15. The remainder of the Application is dismissed.

Confidentiality Order

18Pursuant 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.