MS v. Niijaansinaanik Child and Family Services, 2025 CFSRB 64

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MS Applicant

-and-

Niijaansinaanik Child and Family Services Respondent

INTERIM DECISION

Adjudicator: Donna A. Wowk Date: May 23, 2025 Citation: 2025 CFSRB 64 Indexed As: MS v Niijaansinaanik Child and Family Services (CYFSA s.120)

WRITTEN SUBMISSIONS

MS, Applicant: Stephania Sikora, Counsel Niijaansinaanik Child and Family Services, Respondent: Robin L. Sari, 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 (CYFSA), 2017, SO 2017, c.14, Sched. 1 (the “Act”).

2The CFSRB found the Application eligible to proceed under s. 120(4)4 of the Act.

3At a Pre-Hearing held on March 20, 2025, the Respondent took the position that the CFSRB did not have jurisdiction over this matter as the issues raised by the Applicant in the Application are live issues in the child protection proceeding before the Ontario Court of Justice.

4The parties were directed by the CFSRB to provide written submissions within timelines specified in the Pre-Hearing Report dated April 1, 2025 as to whether the issues in this Application were separate and different from the substantive issues before the Court.

5Both parties have provided the CFSRB with written submissions as to the jurisdiction of the CFSRB to hear this matter. In so doing, both parties provided the CFSRB with numerous affidavits, a total of five Court Endorsements, including one from a family law case that pre-dates the issues raised in the Application, and one Notice of Motion.

6Rule 21.2 of the CFSRB’s Rules of Procedure requires a children’s aid society relying on section 120(8) of the Act to provide “all relevant documents and any orders”.

7Despite the provisions of Rule 21.2 of the CFSRB’s Rules of Procedure, neither party provided the CFSRB with any of the pleadings from the child protection proceeding. More specifically, I do not have the Application or the Answer, or any amendments to the pleadings. However, I do have the Applicant’s uncontroverted submission that the Respondent’s initial protection application requested an order placing the Child with his mother subject to a supervision order with conditions on both parents. The Applicant further submits that the Respondent subsequently amended its pleadings to request a deemed custody order to the mother with specified access to the Applicant.

8In its submissions, the Respondent raises an additional issue, namely, that the Applicant added issues for determination during the Pre-Hearing/Mediation held on February 12, 2025, as reflected in the February 13, 2025 Pre-Hearing/Mediation Report.

ISSUES

9Are the issues in the Application separate and different from the issues that have been or that are before the Court?

10Was it appropriate for the Applicant to add to the issues for determination at the February 12, 2025 Pre-Hearing/Mediation?

RESULT

11I find that there are issues raised in the Application that are separate and different from those that have been or are before the Court. The CFSRB has jurisdiction to hear those complaints.

12I find that it was appropriate for the CFSRB to fully set out the issues for determination as identified at the February 12, 2025 Pre-Hearing/Mediation, subject to the determination to be made as to which issues are not precluded from consideration by section 120(8) of the Act.

ANALYSIS

13Section 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.

14In Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441, the Ontario Court of Appeal held that the mere existence of a child protection proceeding 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.

15The court and the CFSRB are generally concerned with different issues. While the court is engaged in a determination of a child’s best interests, the CFSRB is concerned with whether the children’s aid society involved is carrying out its statutory mandate in its dealings with the service recipient.

16The issues raised by the Applicant in this proceeding are:

1. The Applicant alleges that Worker DL made statements regarding the Applicant’s transgender identity and sexuality, causing the Applicant to feel shame and embarrassment, including during court proceedings. The Applicant also alleges that the Worker did not correct statements made by the Band Representative such as the Applicant playing a “little game of dress up” when the Worker and Band Representative met jointly with the Applicant at her home on October 2023.
2. The Applicant alleges that the Respondent “dead named” her, and despite being requested by the Applicant, it did not refer to her by her new name between October 2023 and December 2024.
3. The Applicant alleges that the Respondent is biased and favours the child’s (“CS’s”) mother, including when providing services and support, due to the mother’s Indigenous heritage.
4. The Applicant alleges that the Respondent did not make earnest attempts to ensure the Applicant had access to CS between December 2023 and February 2024, part of which time the Applicant was seriously ill in the hospital.
5. The Applicant alleges that the Respondent did not engage in a meaningful discussion with her after requesting a new Worker, via text and during an in-person meeting with Supervisor AR in Spring 2024. The Applicant also alleges her lawyer wrote to the Respondent in December 2023 requesting a new Worker and did not receive a response.
6. The Applicant alleges the Respondent did not provide advice or specific information on programming, despite requests from the Applicant, to help her work towards gaining more access to CS.
7. The Applicant alleges the Respondent is not flexible on timing or dates in accommodating the Applicant, when scheduling appointments and video access to CS, despite the Applicant advising the Respondent about time challenges. For example, video access visits with CS are scheduled immediately following the Applicant’s counseling appointments and she sometimes has difficulty attending in time with only a 5-minute window before the video access is disconnected.
8. The Applicant alleges she was not provided accommodations for her disability when these were requested.

17The allegations set out in Issues numbered 1 and 2 at paragraph 16 of this Interim Decision were put before the court by the Applicant. In affidavit material, the Applicant raised her concerns about child protection worker DL making inappropriate statements about her transgender identity and sexuality. She specifically references the statement by the Band Representative that the Applicant was playing a “little game of dress up” although in a sworn affidavit dated January 5, 2024, the Applicant states that DL did interject and tell the Band Representative to stop.

18I find that the allegations by the Applicant related to inappropriate statements and treatment by the Respondent in relation to her transgender identify and sexuality were considered by the court. In a court endorsement dated October 16, 2024, Justice McMorrow made the following statements and findings:

• “The father perceives society staff to be fixated on his gender expression and unconventional lifestyle”
• “The father has been abusive in his interactions with Ms. Lamothe, and I am not able, based on the evidence before me, to find Ms. Lamothe has been anything other than professional in her interactions with him”
• “I also do not accept the submission that she is fixated on the father’s gender expression”

19The allegations at Issue number 3 at paragraph 16 of this Interim Decision are that the Applicant is biased and favours the mother, including when providing services and support, due to the mother’s Indigenous heritage. I find that the court is determining what placement and parenting time is in the Child’s best interests. The Applicant’s claim of bias is relevant to those determinations and is therefore before the court. However, the court will not be considering the broader issue of bias by the Respondent in its provision of services and support to the Applicant. As such, the allegations of bias by the Respondent in its provision of services and support is reviewable by the Board.

20With respect to Issue number 4 at paragraph 16 of this Interim Decision comprised of the Applicant’s allegations related to the Respondent’s ‘earnest attempts’ to ensure she had access to the Child between December 2023 and February 2024, I find that the issue of access was and remains squarely before the court. The issues in the child protection proceeding include determinations as to the parenting time for both parents based on the court’s determination as to what is in the Child’s best interests. Based on my review of the court material, temporary orders have been made in the child protection proceeding related to access by the Applicant.

21I find that Issues numbered 5 through to 8 at paragraph 16 of this Interim Decision are not issues that are before the court. They all relate to the manner by which services were provided to the Applicant and not to substantive issues that will be determined in the legal proceeding.

ORDER

22This Application shall proceed to be reviewed by the Board with respect to the following allegations by the Applicant in the context of s.120(4)4 of the Act.:

1. The Applicant alleges that the Respondent is biased and favours the child’s (“CS’s”) mother in its provision of services and support to the Applicant, due to the mother’s Indigenous heritage.
2. The Applicant alleges that the Respondent did not engage in a meaningful discussion with her after requesting a new Worker, via text and during an in-person meeting with Supervisor AR in Spring 2024. The Applicant also alleges her lawyer wrote to the Respondent in December 2023 requesting a new Worker and did not receive a response.
3. The Applicant alleges the Respondent did not provide advice or specific information on programming, despite requests from the Applicant, to help her work towards gaining more access to CS.
4. The Applicant alleges the Respondent is not flexible on timing or dates in accommodating the Applicant, when scheduling appointments and video access to CS, despite the Applicant advising the Respondent about time challenges. For example, video access visits with CS are scheduled immediately following the Applicant’s counseling appointments and she sometimes has difficulty attending in time with only a 5-minute window before the video access is disconnected.
5. The Applicant alleges she was not provided accommodations for her disability when these were requested.

CONFIDENTIALITY ORDER

23Pursuant 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 these Applications, 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.