M.S. v. The Children’s Aid Society of the County of Simcoe, 2008 CFSRB 44

Child and Family Services Review Board

M.S.

v.

The Children’s Aid Society of the County of Simcoe

REASONS FOR DECISION

WRITTEN REVIEW

Date: May 9, 2008

Citation: 2008 CFSRB 44

Indexed as: M.S. v. The CAS of the County of Simcoe (CFSA s.68)

1The Child and Family Services Review Board (“Board”) received an application from the Applicant on February 29, 2008 regarding a complaint against the Children’s Aid Society of Simcoe County (“Society”) pursuant to section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“Act”).

2Upon review of the application, the Board sent a letter, dated March 12, 2008, requesting that the Applicant provide additional information in order to clarify her complaint. The Board received the additional information on March 26, 2008 and deemed the application eligible for review on March 28, 2008.

3The Board received the Summary Reply from the Society dated April 7, 2008 and has determined that this matter will proceed by way of a written review.

4The Applicant is the biological mother of V., J., and twins, A. and A(2). None of the children are in the Applicant’s care.

5The Applicant makes several complaints concerning the Society in her application. Her complaints are primarily about:

i. events which occurred during child protection proceedings with respect to V. and J.; and

ii. issues related to the apprehension and current Protection Application with respect to her children A. and A(2).

6The Society in its summary reply asks the Board to reconsider its eligibility decision. It takes the position that the subject matters of the complaints are issues that have previously been decided by the Court or, are currently before the Court and as such are ineligible for review by the Board. The Society relies on section 68.1(8)(a) of the Act, which reads as follows:

68.1(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.

7The decision on eligibility is a decision based on a review of the application only, where the Board determines whether the allegations fit within the enumerated grounds under sections 68 and/or 68.1. Once it has been deemed eligible by the Board, the Society, in its summary reply, can identify that it is challenging the Board’s jurisdiction to review the application. Although the Society is asking for a review of the eligibility decision, at this stage of the process, the Board can only determine if it has jurisdiction to review the application. As such, the Board must determine if it has jurisdiction to review the Applicant’s complaints.

ANALYSIS

i. Does the Board have jurisdiction to review events which occurred during child protection proceedings with respect to V. and J.?

8The Applicant complains about events which occurred in child protection proceedings involving two of her children.

9The Society argues in its summary reply that the issues related to J. and V. have been considered and decided by the Court. The Society also submits that an Order denying access to the Applicant means she is not entitled to give or receive information regarding the children. As such, the Society takes the position that any issues which the Applicant has with respect to her access to and her inability to obtain information about either V. or J. were decided by the Court.

10V. and J. have been in the Society’s care since June […], 2001. After a six-day trial on the issue of the Applicant’s access to the children, during which time she was represented by counsel, Madame Justice Rogers, in her decision released March […], 2003, ordered that there be no access granted to the Applicant.

11There was a status review of Justice Rogers’ decision with respect to J. and a trial was held before Justice Ramona Wildman. At this sixty-three day trial, the Applicant was represented by counsel and J. was represented through the Office of the Children’s Lawyer. Justice Wildman, in her March […], 2006 decision, ordered no access to the Applicant. This decision was appealed, however, the Applicant did not participate.

12A Status Review Application with respect to V. was later commenced and Justice Stong on October […], 2007, made an order of Crown Wardship with no access in reference to V. Prior to arriving at this decision, Justice Stong on September […], 2007 noted the Applicant in default due to non-compliance with an earlier court order.

13The Board finds that the Applicant had many opportunities in Court to address her concerns regarding the protection proceedings with respect to V. and J. In some instances, the Applicant was represented by counsel, in others, she chose not to participate. Given that these issues were before the Court and have already been decided by the Court, the Board cannot review these complaints.

14The Applicant also complained that the Society withheld information from Dr. B., who conducted a parenting capacity assessment for the trial before Justice Rogers. Dr. B. presented evidence and her report was considered by the Court. The Board agrees with the Society’s submissions that because the Applicant was represented by counsel at trial, any issues related to Dr. B.’s report could have been addressed through cross-examination. The Board, upon review of Justice Rogers’ decision, notes that the Court carefully considered and weighed the evidence of Dr. B.

15The Board finds that the issues of Dr. B.’s assessment were previously decided by a Court and as such cannot be reviewed by the Board.

16The Board, pursuant to section 68.1(8)(a), does not have the jurisdiction to review complaint (i) because the subject matter of the complaint was previously decided by the Court. As such complaint (i) is dismissed.

ii. Does the Board have jurisdiction to review issues related to the apprehension and current Protection Application of the Applicant’s children, A. and A(2)?

17The children, A. and A(2), were apprehended by the Society in 2007. The Applicant in her application identifies that the protection issue with respect to A. and A(2) is currently before the Court. The Society in its summary reply confirms that there is a Protection Application which is currently before the Court and advises that the Applicant is represented by counsel during these proceedings. The Society states that there are motions scheduled with respect to the Applicant’s access to and the ongoing placement of these children. The Society therefore takes the position that the Board cannot review the complaints related to the Society’s work with the family and the children because they can be raised by the Applicant and addressed by the Court.

18The Board agrees with the submissions of the Society and finds that the issues related to the apprehension of A. and A(2), their ongoing placement and access are issues that are before the Court. The Board does not have jurisdiction to determine if the children are in need of protection, the access to children and the placement of children. Only the Court has jurisdiction to do so. Also, given that there is an ongoing Protection Application before the Court, where these issues can be dealt with, section 68.1(8)(a) prohibits the Board from reviewing this complaint. Therefore, the Board does not have jurisdiction to review this complaint and the complaint (ii) is dismissed.

CONCLUSION

19The application of the Applicant filed pursuant to section 68.1 of the Act is hereby dismissed.

Denyse Diaz

Presiding Member