EC v Hamilton Child and Family Supports, 2024 CFSRB 91

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

EC Applicant

-and-

Hamilton Child and Family Supports Respondent

DECISION

Adjudicator: Donna A. Wowk Date: August 26, 2024 Citation: 2024 CFSRB 91 Indexed As: EC v Hamilton Child and Family Supports (CYFSA s.120)

OVERVIEW

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”).

2In a Case Management Direction dated June 10, 2024, the CFSRB found that the Application was eligible for review under section 120(4)5 of the Act.

3Section 120(4)5 of the Act provides that the CFSRB may review allegations that a society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

4On June 5, 2024, before the CFSRB made the determination as to eligibility, the Respondent wrote to the CFSRB noting that the CFSRB had made a decision in December 2023 “on these same issues” and also stated that there are ongoing court proceedings on al lthe identified issues. The Respondent did not include any documents related to the court proceedings with its June 5, 2024 correspondence.

5In the Case Management Direction issued on June 10, 2024, the CFSRB directed the Respondent to provide the relevant court documents, including any court orders, to the CFSRB and the Applicant on or before June 17, 2024. The CFSRB further directed that, on or before June 28, 2024, the Applicant was to make written submissions on whether the issues in the Application are separate and different from the substantive issues that are or were before the court, and explain how the issues in this Application are different than the issues raised and dismissed in her previous Application. The Case Management Direction provided that the Respondent was not required to file a Response to the Application until the jurisdictional issue was decided.

6The Respondent provided the following documents to CFSRB and the Applicant on June 12, 2024;

a. Status Review Application dated September 21, 2023;

b. Affidavit of Rachel Henry dated September 21, 2023;

c. Answer and Plan of Care of the Applicant dated November 24, 2023;

d. Settlement Conference Brief of the Respondent dated December 19, 2023;

e. Notice of Motion by the Respondent and Affidavit in support by Rachel Henry (without exhibits), both dated May 21, 2024;

f. Trial Scheduling Endorsement dated March 14, 2024; and,

g. Endorsement of Justice Brown dated May 31, 2024

7The documents provided by the Respondent and listed in Paragraph 6 of this Decision, pertain to the two youngest of the three children.

8The Applicant did not provide written submissions as required by the Case Management Direction.

9I have reviewed the issues raised by the Applicant in the Application. The complaints that may be eligible for review can be summarized as follows:

a. As a result of the children being apprehended, they and the Applicant have been deprived of their liberty;

b. The Applicant’s parenting time is cancelled for weeks or months each time she makes a complaint; and,

c. The children have been placed in an unsafe environment, are unable to practice their religious beliefs, and the Applicant’s concerns about the care provided to the children have not been heard or investigated.

10For the reasons set out below, I find that all the issues raised in the Application have been or are before the court such that the CFSRB does not have jurisdiction to review the Application.

ISSUES

11Is the CFSRB prohibited from reviewing this Application because the subject matter of the complaint has been decided by the court or is before the court ?

ANALYSIS

12In the absence of submissions by the Applicant, I have relied on the material filed by both parties, the December 11, 2023 Decision in relation to the Applicant’s previous Application found at 2023 CFSRB 103 (“2023 Decision”) and the jurisprudence.

13The Applicant is the biological mother of three children, ages 6, 7 and 13 yrs.

14The eldest child was in the care of the Applicant until the Spring of 2021. He has since been in the care of his biological father. There is nothing before me to suggest that the issues raised by the Applicant pertain to this child.

15The Respondent commenced a child protection proceeding in the Superior Court of Justice, Family Court, at Hamilton, Ontario (the “Court”), in relation to the two younger children (“the Children”) in April 2021. Several court orders were made during the course of the child protection proceedings primarily in relation to placement, supervision and access to the children. The most recent final order is dated June 26, 2023. It found that the children remained in need of protection and placed them in the Respondent’s care for a pierod of four months.

16There is currently a Status Review Application requesting extended society care of the Children before the Court. According to the Respondent’s material, a settlement conference was held in January 2024 and the case is now on a trial track.

17The Court of Appeal for Ontario held in Children’s Aid Society of Waterloo v. D.D., 2011 ONCA 441 (“DD”) that the mere existence of a child protection proceeding does not automatically bar the CFSRB from reviewing a complaint about the services an individual has received from a children’s aid society. The court in DD also held that where service complaints are “separate and different from the substantive issues before the court”, the CFSRB may review the complaints.

18Below I consider each of the issues set out in Paragraph 9 above.

Issue 1: As a result of the children being apprehended, they and the Applicant have been deprived of their liberty

19Although the Applicant is not specific in the Application as to the date of the apprehension she is referencing or what child or children were involved, this information is not required to determine the issue.

20There are specific provisions in the Act as to what must occur in the event of an apprehension. Absent an agreed-upon resolution, the Act requires that a society that apprehends a child must bring the matter before the court for a hearing within five days.

21The circumstances, merits, and appropriate relief related to an apprehension are issues that would have been before the Court as requiredby the Act. As a party to the proceeding, the Applicant had the ability to raise her concerns and present evidence in support of her position in relation to the apprehension. As such, the CFSRB does not have jurisdiction to review this issue.

Issue 2: The Applicant’s parenting time is cancelled for weeks or months each time she makes a complaint

22The issue of access is specifically addressed in the Respondent’s Status Review Application. More particularly, the Respondent is requesting an order granting the children’s parents access in the Respondent’s discretion and supervised in their discretion with reasonable minimums.

23Access to the children is also specifically addressed in the Applicant’s Answer and Plan of Care. In her Answer and Plan of Care, the Applicant asks the Court for an order placing the children in her care subject to reasonable terms of supervision. She further requests that, pending the return of the children, she have “liberal and generous unsupervised parenting time with the children, including overnights”.

24It is evident from the Applicant’s own pleadings in the status review proceeding that access is an issue that is before the court. The concerns raised by the Applicant in her Application in relation to access are concerns that she can address in the context of the status review proceeding.

25Access is an issue that is before the court, having been raised in the pleadings of both the Applicant and the Respondent. On this basis, I find that the CFSRB does not have jurisdiction to review this issue.

Issue 3: The children have been placed in an unsafe environment, are unable to practice their religious beliefs, and the Applicant’s concerns about the care provided to the children have not been heard or investigated

26The Applicant made an Application to the CFSRB under section 120 of the Act in late 2023 in relation to the same three children named in the Application currently before the CFSRB.

27The issues raised by the Applicant in her 2023 Application included allegations that the Respondent failed to hear her concerns regarding safety and neglect of the children whie in the care of their caregivers.

28In its December 11, 2023 Decision with respect to the Applicant’s 2023 Application, the CFSRB held that the children’s health and safety in their placements were before the court through the child protection and status review proceedings. The CFSRB further held that the Applicant was a party to these child protection proceedings and had the ability to raise her concerns and evidence regarding the children’s placements with the court.

29The Status Review Application referenced in the December 11, 2023 Decision of the CFSRB remains pending. The Applicant’s allegations with respect to the Children’s placements are before the Court just as they were at the time of the December 11, 2023 Decision. The Applicant continues to be entitled to raise her concerns and present her evidence on this issue with the Court. As such, the CFSRB does not have jurisdiction to review this issue.

Conclusion

30For the reasons set out above, I find that all the issues raised by the Applicant in her Application dated June 4, 2024 have been or are before the Court and therefore the CFSRB does not have jurisdiction to review these issues.

ORDER

1The Application is dismissed for lack of jurisdiction.

CONFIDENTIALITY ORDER

29Pursuant 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.