PL v. Children’s Aid Society of Toronto, 2024 ONCFSRB 36

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

PL Applicant

-and-

Children’s Aid Society of Toronto Respondent

DECISION

Adjudicator: Daniel McSweeney Date: March 26, 2024 Citation: 2024 CFSRB 36 Indexed As: PL v Children’s Aid Society of Toronto (CYFSA s.120)

WRITTEN SUBMISSIONS

Toronto Children’s Aid Society, Respondent

Justine Sherman, 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 Applicant is the mother of a daughter (the “Child”) who is in the care of the Respondent.

3The Applicant identified the following Issues/Concerns in her Complaint:

1. The Applicant alleges that Respondent workers did not hear her concerns regarding the lack of telephone and in-person access to the Child;
2. The Applicant alleges that Respondent workers did not hear her requests that the Child be given a chance to provide her opinions without pressure; and
3. The Applicant alleges that Respondent workers did not hear her concerns that the Child never stated that she was not ready to return home.

4In response to Questions 9 and 10 in the Application, the Applicant indicated that the concerns in the Application have been dealt with by the Court and are currently before the Court.

5In its Response to the Application, the Respondent argued that it provided the Applicant with an opportunity to be heard with respect to her concerns, and to receive information and explanations relating to issues that she raised.

6The Respondent reported that the Court had placed the Child in the temporary care and custody of the Respondent with access at the Respondent’s discretion. Since the initial Order made by the Court, the Applicant’s access to the Child has been at the discretion of the Respondent and in accordance with the Child’s wishes and treatment needs. Respondent workers have encouraged the Child to have access with her mother; however, at times the Child was adamant that she was not willing to see her mother. The Child has also expressed a desire to be placed in extended society care.

7The Respondent argued that issues related to the Applicant’s access to the Child are currently before the Court or have been before the Court. Therefore, the CFSRB does not have the jurisdiction to review the Complaint pursuant to Section 120(8)(a) of the Act.

8In a Case Management Direction dated January 17, 2024, the Applicant was directed to provide submissions on whether the issues in the Complaint were separate and different from the substantive issues before the Court. The Respondent was also afforded an opportunity to provide submissions in reply. The Applicant did not provide submissions.

9The Respondent reiterated its submission that the Applicant was heard and was provided with explanations for the Respondent’s actions. In addition, the Respondent argued that the issues in the Complaint were not separate and different from the substantive issues before the Court. Therefore, the CFSRB is precluded form reviewing the Issues/Concerns in the Complaint.

10The Respondent appended the following documents to its Response:

• Order of Justice Paulseth dated July 20, 2022
• Endorsement of Justice Paulseth dated September 12, 2022
• Statement of Agreed Facts signed by the Applicant in December 20233
• Order of Justice Paulseth dated December 6, 2022

THE LAW

11Subsection 120(8) of the Act states:

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.

12The 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.

13The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or videoconference. Subsection 8.1 of the Rules state:

In deciding the format of a hearing, the CFSRB will consider:

a) whether it is a fair and accessible process for the parties; b) the costs and efficiency of the process; c) the potential for a more expeditious resolution; d) the convenience of the parties; e) the consistency with the CFSRB’s mandate; f) whether the facts or evidence may be agreed upon; g) the estimated duration of the hearing; h) whether the issues for hearing are predominantly legal issues; i) whether oral testimony is likely to be needed; j) any objections to the format of the hearing.

ANALYSIS

14My determination focuses on whether the CFSRB has the jurisdiction to review the Applicant’s Complaint given the exclusion in s. 120(8).

15I considered the format of the hearing. I found that, based on CFSRB Rule 8.1 (above), the CFSRB has the authority to review a complaint in writing. Given the lack of submissions by the Applicant, and given the submissions and documentation provided by the Respondent, I found that a review of the Complaint in writing would be the most efficient and expeditious approach to this matter. Additional oral evidence from the Applicant was not required as the disposition of the Complaint focuses on the narrow issue of the CFSRB’s jurisdiction to review the Complaint pursuant to s. 120(8) of the Act.

16My 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.

17In this case, the Court has decided issues of custody and access on several occasions. The various Court proceedings provided the Applicant, as well as the Child an opportunity to share their preferences and concerns with respect to custody and access. The Court has provided the Respondent with discretion over all aspects of access. The Respondent has placed significant weight on the Child’s wishes and preferences regarding access.

18The Court has also heard the Applicant’s concerns regarding custody and access related to a Motion by the Applicant to have the Child returned to her care and for expanded access. In addition, the Court considered a Motion related to custody and access put forward by the Child’s father. These Motions were dismissed by the Court (Endorsement of Justice Paulseth, September 12, 2022). The Applicant’s concerns were also included in a Statement of Agreed Facts presented to the Court on December 2, 2022. This Statement includes the fact that Respondent staff have encouraged the Child to have contact with the Applicant. The Statement also speaks to the placement of the Child in the interim care of the Respondent, and that access be at the discretion of the Respondent in accordance with the Child’s wishes and treatment needs.

19I also note that the Child was represented by Counsel throughout the various Court proceedings and had an opportunity to share with the Court her perspectives and desires related to custody and access.

20Given the evidence provided by the Respondent, I find that the Issues/Concerns in the Applicant’s Complaint have been placed squarely before the Court. In addition, I find the Issues/Concerns in the Complaint were not separate and different from the issues before the Court.

21As such, the CFSRB does not have the jurisdiction to review the Applicant’s Complaint pursuant to s. 120(8) of the Act.

DECISION

22For the reasons identified above, I find that the CFSRB does not have jurisdiction to review the Applicant’s Complaint.

23The Application is dismissed in its entirety.

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.