CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
SO
Applicant
-and-
Family and Children’s Services Niagara
Respondent
DECISION
Adjudicator: Catherine Bickley
Indexed As: SO v Family and Children’s Services Niagara (CYFSA s.120)
WRITTEN SUBMISSIONS
SO, Applicant Self-represented
Family and Children’s Services Niagara, Respondent Maggie Scull, 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.
3After the Respondent questioned the CFSRB’s jurisdiction to review the Application, the CFSRB issued a Case Management Direction (“CMD”) directing the Applicant to make written submissions on the jurisdictional issue. She did not do so.
4I find there is sufficient information in the Application and Response to decide the jurisdictional issue, particularly since dozens of emails from the Applicant to the Respondent were included in the Court materials attached to the Response. In combination with the Application, these emails detail the Applicant’s concerns.
issue
5Are the issues in the Application separate and different than the substantive issues before the Superior Court of Justice (“the Court”) in a current child protection proceeding?
RESULT
6The issues in the Application are not separate and different than the substantive issues before the Court. As a result, the CFSRB lacks jurisdiction to review the Application and it must be dismissed.
analysis
7The Applicant is the parent of a teenage son, L. Since October 2022, L has been in the care of the Respondent, living first in a foster home and then in two different group homes. L was initially in the Respondent’s care under a voluntary Temporary Care Agreement. When the Applicant withdrew her consent to that agreement, the Respondent started child protection proceedings in which the Court has already heard and decided several motions. A lengthy trial on the merits is anticipated.
8As set out in the Application and in dozens of emails from the Applicant to the Respondent, the Applicant alleges that:
- the Respondent has not heard her concerns about L’s wellbeing while in the Respondent’s care;
- the Respondent has been working with L’s father to alienate L from her by supporting L’s father’s access including a proposed visit by L to England;
- Respondent staff, Respondent counsel, and a lawyer from the Office of the Children’s Lawyer (“the OCL”) have presented the Court with inaccurate information, including a psychological assessment report with which she disagrees;
- the Respondent is not following Court orders; and,
- Court proceedings were twice adjourned as a delay tactic;
9The Court of Appeal for Ontario (“the OCA”) ruled in Children’s Aid Society of Waterloo v. D.D, 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. For the following reasons, I find that the issues raised by the Applicant in her CFSRB Application are all before the Court.
L’s wellbeing in the Respondent’s care
10In most cases, issues about the wellbeing of a child while in the care of a children’s aid society are not substantive issues before the Court in a child protection proceeding. In this case, however, those issues were placed before the Court when it decided a motion brought by the Respondent ending access between the Applicant and L. In responding to that motion, the Applicant raised significant concerns about L’s wellbeing in care.
11In its April 23, 2024 Endorsement, the Court reviewed and considered the Applicant’s concerns about L’s wellbeing, including nine incidents where the Applicant alleged group home staff endangered L’s life. This case is thus quite different from the situation in D.D. where the OCA found, at paragraph 36, that issues of D.D.’s children’s wellbeing in foster care “did not relate to the protection application per se and, indeed, would in all likelihood be considered irrelevant to it.”
12The Applicant’s concerns about L’s wellbeing while in care, including allegations that his computer was hacked by staff and that various items were stolen from him, and the Respondent’s position on these allegations are also detailed in various affidavits filed in the Court proceeding.
13I find that the issue of L’s wellbeing while in the care of the Respondent is not separate and different than the substantive issues before the Court.
The Respondent’s support of L’s access with his father
14This issue has been canvassed extensively before the Court and the Court has made orders on the issue. For example, in a February 16, 2024 Endorsement, the Court found that it was in L’s best interests “to permit the Society to make arrangements for him to travel to the UK to visit with” his father. I find that this issue is not separate and different than the substantive issues before the Court.
The psychological report and other alleged inaccurate information
15In a September 19, 2023 Endorsement the Court granted the Respondent’s request that a psychologist conduct a psychological assessment of the Applicant under section 98 of the Act. The resulting report is part of the materials which the Respondent is relying on in the child protection proceeding.
16The Applicant disputes the report’s conclusions regarding her mental health. The Respondent acknowledges in material filed with the Court that the Applicant has not yet had an opportunity to cross-examine on the report. She will have an opportunity to do so at the upcoming child protection trial. The report was ordered by the Court and the upcoming trial is the appropriate place for the Applicant’s concerns regarding that report to be raised. Similarly, the appropriate forum in which to challenge any alleged inaccurate information presented to Court is the Court.
17I find that the validity of the psychological report and the accuracy of other information contained in affidavits and testimony of Respondent staff in the Court proceedings are not issues that are separate and distinct from the substantive issues before the Court. Indeed, these issues are integral to the Court proceeding and thus outside the CFSRB’s jurisdiction.
Whether the Respondent is failing to follow Court orders
18Concerns about whether the Respondent is failing to follow Court orders are most appropriately raised before the Court which made those orders.
Adjournments of the child protection proceedings
19The Applicant’s concern about adjournments of the child protection proceedings is an issue within the jurisdiction of the Court and not the CFSRB.
conclusion
20For the reasons set out above, I conclude that the issues in the Application are not separate and different than the substantive issues before the Court. As a result, the CFSRB lacks jurisdiction to review the Application and it must be dismissed.
order
21The Application is dismissed.
confidentiality order
22Pursuant 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.
Dated at Toronto, September 27, 2024.
Catherine Bickley
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Catherine Bickley
Vice-Chair