DC v. Highland Shores Children’s Aid Society, 2025 CFSRB 10

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

DC

Applicant

-and-

Highland Shores Children’s Aid Society

Respondent

DECISION

Adjudicator: Pierre R. Lavigne

Date: January 31, 2025

Citation: 2025 CFSRB 10

Indexed As: DC v Highland Shores Children’s Aid Society (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, S.O. 2017, c.14, Sched.1 (the “Act”).

2As part of its Interim Decision of December 3, 2024 the CFSRB ordered that the Applicant’s evidence at the hearing be limited to matters previously raised in writing with the Respondent.

3The CFSRB heard this Application by videoconference on December 5, 2024.

ISSUES

4At the October 30, 2024 pre-hearing, the CFSRB defined the issues in the Application as follows:

1. Did the respondent refuse to proceed with a complaint filed by the applicant?

2: Did the society fail to respond to a complaint within the timeframe required by the regulation?

3. Did the society fail to comply with the complaint review procedure or with any other procedural requirement?

4. Did the society fail to give the applicant the opportunity to be heard and represented when decisions affecting her interest were being made, or to be heard when concerns about the services being received were raised?

5. Did the society fail to provide the applicant with reasons for a decision affecting the applicant’s interests?

RESULT

51. The Respondent did not fail to proceed with a complaint filed by the applicant.

2. The Respondent did not fail to respond to a complaint within the timeframe required by the regulation.

3. The Respondent did not fail to comply with the complaint review procedure or with any other procedural requirement.

4.The Respondent failed to give the applicant the opportunity to be heard when concerns about the services being received were raised.

5. The Respondent society did not fail to provide the applicant with reasons for a decision affecting the applicant’s interests.

ANALYSIS

ISSUE 1: Did the Respondent refuse to proceed with a complaint filed by the applicant?

6The CFSRB finds that the Respondent did not refuse to proceed with the Applicant’s complaint because no complaint, in the form required by section119(1) of the Act, was ever made to the Respondent.

7The documentary evidence of the Respondent established that the Applicant made an informal complaint to the Respondent by email on September 4, 2024, but a formal complaint, on the form required by section 56 of Ontario Regulation 156/18 (“Regulation”) was never made to the Respondent. As permitted by s. 120(1) of the Act, the Applicant could make the formal complaint directly to the CFSRB without initiating or completing the Respondent’s formal complaint procedure. A formal complaint was made directly to the CFSRB on September 9, 2024.

8I find that the Applicant did not make a complaint to the Respondent on the form required by the Regulation, therefore there was no refusal by the Respondent to proceed with any complaint.

ISSUE 2: Did the Respondent fail to respond to the complaint within the timeframe required by the regulation?

9As the Applicant did not make a complaint to the Respondent in the form required by the Regulation, there was no complaint for the Respondent to respond to.

10ISSUE 3: Did the Respondent fail to comply with the complaint review procedure or with any other procedural requirement?

11As the Applicant did not make a complaint to the Respondent in the form required by the Regulation, there was no failure by the Respondent to comply with the complaints review procedure or with any other procedural requirement.

ISSUE 4: Did the Respondent fail to give the Applicant the opportunity to be heard and represented when decisions affecting her interest were being made, or to be heard when concerns about the services being received were raised?

12Subsection 15(2) of the Act states:

Service providers shall ensure that children and young persons and their parents have an opportunity to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.

13There are two separate questions to be answered under this issue. The first is whether a service provider gave the Applicant an opportunity to be heard when decisions affecting her interests were made. The second question is whether a service provider gave the Applicant an opportunity to be heard when an Applicant had concerns about the services received.

Background

14The following summary is derived from the oral and documentary evidence provided at the hearing.

15Prior to April 2023 the then 6-year-old child was in the care of the Applicant mother. Both the Applicant and child were residents of Quebec.

16On April 14, 2023, the Court of Quebec (Youth Division), on a youth protection application by the Director of Youth Protection (Quebec) (“DYP”), ordered the child to be placed in the care of his father, a resident of Ontario. Decisions concerning the method, frequency and supervision of access were remitted by the Court of Quebec to the DYP.

17On May 1, 2024 the DYP decided that the Applicant’s access visits with the child must be supervised by a child protection worker. The DYP requested of the Respondent that it provide the access supervision services in Ontario.

18On June 19, 2024 the Applicant advised the Respondent that she had moved to Ontario and wished her youth protection matter transferred from Quebec to Ontario.

19On September 4, 2024, the Applicant made an email complaint to the Respondent’s Manager about decisions made concerning her access visits with the child as well as concerns about the Respondent’s supervision services.

20On September 9, 2024, the Applicant made her application to the CFSRB.

21On September 11, 2024, in response to the applicant’s September 4 complaint, Respondent’s counsel wrote that “case specific issues enumerated in the email are currently before the court. At this time the Highland Shores Children’s Aid Society is servicing this file on behalf of another agency and cannot make case decisions. Please have your client address these case specific issues directly with her worker or with the Court.”

22On September 12, 2024, the DYP withdrew its child protection proceedings before the Court of Quebec.

23On September 13, 2024, the Respondent initiated child protection and status review proceedings before the Family Court of the Ontario Superior Court of Justice.

Applicant’s complaints with respect to decisions made.

24In the Application to the CFSRB, where the applicant identifies why they have applied to the CFSRB, the applicant indicated that the Respondent had failed to give an opportunity to be heard when decisions affecting their interests were made.

25The Applicant in her oral testimony complained of decisions with respect to the frequency of access visits as well as decisions to suspend her access visits.

26The CFSRB finds that the decisions complained of were made by the DYP pursuant to the order of the Court of Quebec. As these decisions were not made by the Respondent, the Respondent had no obligation to give the Applicant an opportunity to be heard, with respect to these decisions.

27For this reason, the CFSRB finds that it has no jurisdiction to review whether the Respondent gave the Applicant an opportunity to be heard when decisions affecting the Applicant’s interests were made by the DYP pursuant to the order of the Court of Quebec.

Applicant’s complaints with respect to concerns raised.

28In the Application to the CFSRB, where the applicant identifies why they have applied to the CFSRB, the applicant also indicated that the Respondent had failed to give an opportunity to be heard when they have concerns about the services they are receiving.

29One of the Applicant’s concerns was not being able to meet with LM between the suspension of her access visits in early August, 2024 and LM’s departure for vacation on August 15. The evidence shows many emails between the Applicant and LM between August 8, and August 15 where the parties attempted to set up a mutually convenient time which would also have included a DYP caseworker, but none was agreed to until LM’s return from vacation on September 9, 2024.

30On August 30, 2024 a videoconference meeting occurred between the Applicant, Applicant’s DYP counsel, a DYP caseworker and a Respondent Supervisor where various concerns were raised including that the Respondent’s caseworker was lying. When asked for examples of how the caseworker was lying, the Applicant would not provide any evidence or examples. With respect to this concern I find the Respondent gave the Applicant her opportunity to be heard, which was declined by the Applicant.

31According to the email on September 4, 2024, from the Applicant to the Respondent’s senior service manager, as well as the Applicant’s evidence at the hearing, the following concerns made to the Respondent can be distilled:

a. An allegation that the Respondent’s caseworker LM was biased in favour of the father, and failed provide feedback after supervised visits. (“Issue 4(a)”)

b. An allegation that the Applicant’s supervised access visits were delayed due to the unavailability of anyone to supervise access visits in French, even though the Applicant offered to conduct her supervised access in English so her supervised access would not be further delayed. (“Issue 4(b)”).

c. An allegation that the Respondent gave the Applicant’s Ontario address to the father without the Applicant’s consent, contrary to Part X (Personal Information) of the Act (“Issue 4(c)”)

Respondent’s objection to CFSRB jurisdiction under s. 120(8) of the Act.

32On September 11, 2024, Respondent counsel’s email to the Applicant in response to her email of September 4, did not address the concerns identified above. She indicated that the Respondent “cannot speak to the case specific issues” identified in the email and that it was her understanding that these matters were “currently before the court.”

33S. 120(8) prohibits the CFSRB from reviewing a complaint when the subject matter of the complaint is before the court. It reads as follows:

No review if matter within purview of court

(8) 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; or

(b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995.

34The CFSRB does not agree that it is barred from reviewing this complaint for the following reasons.

35When the Applicant’s complaint to the Respondent’s Senior Manager was made on September 4, 2024, the “subject(s) of the complaint” were not, in law, “before the court”. The Act defines “court” in subsection 2(1) of the Act as the Ontario Court of Justice or the Family Court of the Superior Court of Justice. There were no matters before the Ontario court until September 13, 2024.

36Nonetheless, by the date of the hearing on December 5, 2024 the Respondent had initiated a child protection application before the Family Court of the Superior Court of Justice.

37In Children's Aid Society of Waterloo v. D.D., 2011 ONCA 441 at para. 35 the Court of Appeal for Ontario decided 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.

38I have carefully reviewed the Ontario Child Protection Application (“CPA”) filed with the court by the Respondent on September 13, 2024. The stated ground for a protection finding is that the Child was and is at risk of suffering emotional harm resulting from the actions on the part of the Child’s parent. The CPA requests that the Child be placed in the custody of the father with provisions for access by the Applicant on a going forward basis.

39The CPA does not seek to resolve the specific service complaints identified above which occurred before the Respondent’s commencement of the CPA. The focus of the CPA is the child’s best interests in the future. I find that the concerns raised by the Applicant are separate and apart from the Ontario child protection proceedings. Accordingly, I find that section 120(8) of the Act does not exclude the CFSRB’s authority to review whether the Respondent provided the Applicant with an opportunity to be heard when she raised the concerns in her email of September 4, 2024.

Failure to provide the opportunity to be heard.

40In P.O. v. Family and Children Services Niagara, 2012 CFSRB 38 at para. 15, the CFSRB found that the opportunity to be heard “involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.”

41I find that the Respondent did not meet its obligation to hear the Applicant’s concerns, identified as a, b and c in paragraph 31 above, when it pre-empted any response or further discussion by taking the position that these concerns were before the court.

ISSUE 5: Did the Respondent fail to provide the applicant with reasons for a decision affecting the applicant’s interests?

42As indicated in Issue 4 above, the Applicant in her oral testimony complained of decisions with respect to the frequency of access visits as well as decisions to suspend her access visits.

43The CFSRB finds that the decisions complained of were made by the DYP pursuant to the order of the Court of Quebec. As these decisions were not made by the Respondent, the Respondent had no obligation to give the Applicant reasons for the DYP’s decisions. As this was a matter between the DYP and the Applicant, the Applicant had to seek reasons from the DYP.

ORDER

44The Applicant’s complaints identified as Issues 1, 2, 3 and 5 are dismissed.

45The Respondent is ordered, pursuant to s. 120(7)(b) of the Act, to provide a response to the Applicant’s complaint Identified as (a), (b) and (c) set out in paragraph 31 above, within 30 days of the date of this decision.

CONFIDENTIALITY ORDER

46Pursuant 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.