BK v. Dnaagdawenmag Binnoojiiyag Child and Family Services, 2024 CFSRB 92

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

BK

Applicant

-and-

Dnaagdawenmag Binnoojiiyag Child and Family Services

Respondent

DECISION

Adjudicator: Donna A. Wowk

Date: August 30, 2024

Citation: 2024 CFSRB 92

Indexed As: BK v Dnaagdawenmag Binnoojiiyag Child and Family Services (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”) involving a seven year old child (the “Child”)

2On June 17, 2024, the CFSRB issued a Notice of Eligibility providing that the Application was eligible for review under sections 120(4)4 of the Act. The ‘right to be heard’ under section 120(4)4 is limited to “children and young persons and their parents”. The Applicant is the former caregiver/foster parent of the Child. The definition of “parent” under the Act does not include caregivers or foster parents. The Application is therefore not eligible for review under section 120(4)4.

3Section 120(4)5 of the Act provides that the CFSRB may review allegations that a society has failed to provide a complainant with reasons for a decision that affects the complainant’s interests. In her Application, the Applicant alleges that the Respondent did not provide her with reasons for decisions that affected her interests. My consideration of the jurisdiction of the CFSRB over this Application is under section 120(4)5 of the Act only.

4The substance of the Applicant’s complaint consists of allegations summarized as follows:

a. The Respondent “supported and facilitated” breaches of a court order for access and contempt of the access order by the Child’s aunt with whom the Child had been placed;

b. The Respondent did not investigate disclosures of inappropriate conduct towards the Child prior to his coming into her care that the Child made to the Applicant and that she relayed to the Respondent;

c. The Respondent did not intervene as it ought to have done in the verbal abuse to which the Applicant alleges she was subjected during a Healing Circle held to address the Applicant’s request for access to the Child;

d. The Respondent discriminated against the Applicant because she was not Indigenous; and,

e. The Respondent made false representations to the court about the Applicant including that she was in breach of the Act;

5In its Response, the Respondent took the position that the Application is not eligible for review by the CFSRB as the subject matter of the Application has been decided by or is before the Superior Court of Justice in Oshawa (“SCJ”) and the Divisional Court.

6The CFSRB issued a Case Management Direction dated June 28, 2024 directing the Applicant to make written submissions on or before July 19, 2024 on whether the issues in the Application are separate and different from the substantive issues before the court. The Case Management Direction further provided that the Respondent may, but was not required to, file a Reply on or before July 26, 2024. Both parties filed written submisisons in accordance with the June 28, 2024 Case Management Direction.

7For the reasons set out below, I find that the Application must be dismissed as all the allegations made by the Applicant have either been decided by the court or are before the court.

ISSUES

8Is 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 ?

BACKGROUND

9The Applicant is a former caregiver/foster parent of the Child.

10The Child has never been in the care of his biological parents due to child protection concerns. There were continuous child protection proceedings in the SCJ starting in 2018.

11In approximately July 2020, the Child was placed with his paternal aunt. That placement broke down approximately one year later. In July or August 2021, the Child was placed in the care of the Applicant further to a court order made in the SCJ proceeding. That court order provided for access by the paternal aunt through the Respondent’s Supervised Access Program.

12The Respondent subsequently decided to again place the Child in the care of his paternal aunt. On July 26, 2022, a temporary order was made placing the Child in the care of his paternal aunt subject to supervision by the Respondent. That order provided for access by the Applicant at the discretion of the Respondent and facilitated by the paternal aunt.

13The paternal aunt refused to facilitate access to the Applicant other than two video visits. The Applicant brought a motion for access to the Child as well as for party status in the SCJ proceeding. The Applicant was granted party status in the SCJ child protection proceeding.

14On September 19, 2023, the Applicant’s motion for access to the Child was granted in the SCJ proceeding with a temporary order made specifying access by the Applicant to the Child.

15The paternal aunt refused to provide access other than two video visits. The Applicant brought a Contempt motion in relation to the September 19, 2023 access order that was heard on December 6, 2023. The decision was reserved and not released prior to the conclusion of the case.

16The Respondent brought a motion for leave to appeal the September 19, 2023 order in the Ontario Divisional Court. The Applicant was a party to this proceeding.

17The Applicant ultimately withdrew all her claims for relief in relation to the Child in both the SCJ and in the Divisional Court.

ANALYSIS

18The Applicant was a party in both the SCJ child protection proceeding and the Divisional Court proceeding.

19All the allegations by the Applicant in her Application were with respect to issues that were before the court or that the Applicant could have raised in the legal proceedings.

20The central issue for the Applicant was her desire to have access to the Child and her allegations in the Application are all in relation to her claim in the legal proceedings for access. That issue was squarely before the SCJ and the access order made in SCJ was the subject of the motion for leave to appeal by the Respondent.

21The determination of the access issue required an assessment of the Child’s best interests. The allegations of discrimination or overreliance by the Respondent on her non-Indigenous status should have been addressed by the Applicant in the court proceedings.

22Regarding her allegations that the Respondent had supported the breaches of the access order by the paternal aunt, it was open to the Applicant to make these allegations in the court proceedings, including in the context of her Contempt motion.

23During the course of both the SCJ and Divisional Court proceedings, to which she was a party, it was open to the Applicant to raise concerns related to the care of the child while he was placed with the paternal aunt. The same applies to the Applicant’s allegations of false representations by the Respondent to the Courts involved. The Court was the proper forum for the Applicant to raise her concerns.

24Regarding her allegation about the Respondent’s conduct in the Healing Circle, the Applicant acknowledges in her material that this was an issue brought up in the SCJ.

Conclusion

25For the reasons set out above, I find that all the issues raised by the Applicant in her Application either were or are before the Court and therefore the CFSRB does not have jurisdiction to review these issues.

ORDER

26The 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.