CHILD AND FAMILY SERVICES REVIEW BOARD
A.G.
v.
Catholic Children’s Aid Society of Toronto
REASONS FOR DECISION ON JURISDICTION
Date: October 20, 2009
Citation: 2009 CFSRB 59
Indexed as: A.G. v. Catholic CAS of Toronto (CFSA s.68)
INTRODUCTION
1A.G. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on July 2, 2009 under section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The Applicant’s complaint is about the services of the Catholic Children’s Aid Society of Toronto (the “Society”). The complaint was found eligible for review under subsections 68.1 (4) 4 and 5 of the Act on July 8, 2009.
2A pre-hearing was held on August 14, 2009. Most of the Applicant’s complaints were resolved at the pre-hearing with the exception of her complaint that the Society did not explain to the Applicant why it sought crown wardship of her son C.. This complaint proceeded to a hearing before the Board.
3The Society brought a motion challenging the Board’s jurisdiction on the basis that the matter was before the Court and has been decided by the Court. The Applicant’s position was that the Board had jurisdiction.
4The issue before the Board was whether or not the subject of the complaint, namely, why the Society was seeking crown wardship with no access (“the complaint”) was before or decided by the Court.
5A hearing on jurisdiction was held on October 1, 2009. The Board reserved its decision.
6The Board has determined that it does not have jurisdiction to deal with the complaint because it was before and has been decided by the Court. The reasons for this decision follow.
7Prior to the hearing on jurisdiction, the Society classified the issue before the Board identified in the pre-hearing report (whether the Society provided reasons for its crown wardship position) as a new issue and raised concerns about not being given the opportunity to respond to the issue in the normal course i.e. through a summary reply. The Society submitted that this went to jurisdiction and to fairness. The Board finds that this issue was not “new”. It was linked to the original complaint which raised concerns about the Society’s failure to re-unify the Applicant with her child and the decisions made and allegedly not communicated by the Society in that regard. This issue was clarified during the pre-hearing process. The hearing was split in terms of jurisdiction and merits. Had this case gone to a hearing on the merits of this issue, the Board would have addressed any fairness concerns raised, at that time.
8The Applicant’s complaint was grounded in section 68.1 (4) 5 of the Act, which provides as follows:
s. 68.1 (4) The following matters may be reviewed by the Board under this section:
5 Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
Pursuant to 68.1(5), the Board must conduct a review upon receipt of a complaint.
9The Society relied on s. 68.1(8) (a) of the Act which states that:
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.
BACKGROUND
10The Applicant is the mother of C., born August […], 2008. C. was apprehended from the hospital by the Society on August […], 2008. The Society filed child protection proceedings on September […], 2008 at which time C. was made a temporary ward of the Society. On September […], 2008, the Applicant was granted supervised access by the Court. The Applicant responded to the application and to the plan filed by the Society in mid October, 2008.
11On November […], 2008, the Society sought an order for a parenting capacity and psychiatric assessment. The Applicant opposed the request, attended the first Court appearance and filed an affidavit in response. The Court ordered an assessment on November […], 2008. On March […], 2009, a copy of the Parenting Capacity Assessment of Dr. B., dated February […], 2009, was served on the Applicant as an exhibit to the Affidavit of the Child Protection Worker dated March […], 2009. On April […], 2009, the Applicant did not attend Court. The child protection matter was adjourned to May […], 2009 in order to set a trial date. The Society wrote to the Applicant on April […], 2009 advising her that they would be asking the Court to set a date for a Summary Judgment motion. The Society filed a motion for Summary Judgment which was heard on August […], 2009. The Applicant was represented by counsel. On September […], 2009, Justice Jones released her ruling on the Summary Judgment motion. She found C. to be a child in need of protection and made an order for crown wardship with no access. She provided written reasons for her decision.
ANALYSIS
12The Applicant’s position is that throughout the process, she was not provided with reasons as to why the Society was seeking an order that C. be made a crown ward with no access. It is her position that her complaint was not before or decided by the Court.
13The Society’s position is that it placed its reasons for requesting crown wardship without access before the Court in child protection proceedings and thus, it has from the outset and on an ongoing basis, provided the Applicant with reasons for its decision to seek crown wardship without access.
14The reasons for the Society’s decision to seek crown wardship without access were before the Court within days of the apprehension. The Act requires that the Society bring child protection matters to court within five days of apprehension. The Society did so. It is also obliged to state the order that it is seeking. While a society will not always seek an order for crown wardship with no access in the originating application, the Society did so in this case. The Child Protection Application dated September […], 2008 specifically sets out the order sought and ten grounds or reasons in support of the order sought. The reasons include the Applicant’s mental health, the apparent lack of a long term kin option and the fear that the Applicant would flee the jurisdiction with the baby.
15Further information about the Applicant relevant to the reasons contained in the Child Protection Application was provided in the Affidavits of N.S. and A.M. Child Protection Workers, dated September […], 2008, as well as in the Affidavit of S.T., Child Protection Supervisor. Further updates about the Applicant were provided to the Court by the Society in the Affidavits of Ms. R.F. dated March […], 2009 and July […], 2009. All of this material was provided to the Applicant.
16The Society relied on the Parenting Capacity Assessment in continuing to seek crown wardship without access before the Court. The Society filed the Affidavit of R.F. dated March […], 2009. Ms. R.F. Affidavit summarizes the concerns indicated in the Assessment including that Ms. A.G. suffers from severe, chronic mental health issues that prevent her from parenting her child and is at high risk of fleeing with the child, exposing him to dangerous situations and inadequate supervision. Ms. R.F. Affidavit clearly spells out three reasons for her opinion as a Society worker as to why C. should be made a crown ward with no access. The reasons given are that based on the Parenting Capacity Assessment, the Applicant does not have the capacity to care for C., there are no alternative kin plans and C. requires long term stability. This material was provided to the Applicant.
17The Society‘s motion for Summary Judgment, served on the Applicant, includes a request for an order making C. a crown ward with no access for the purposes of adoption. The Society’s reasons were before the Court on the motion for Summary Judgment because the Society had to demonstrate to the Court that it had a valid basis in fact and law for seeking crown wardship without access, that left no room for dispute from a legal standpoint.
18The Court is the guardian of its process and must ensure that the Applicant is duly served with the child protection application and the supporting affidavits-all of which contained the Society’s reasons for believing the child is in need of protection. Put simply, the Court must ensure that the Applicant has notice as to why the Society is seeking Crown Wardship without access. Fair notice is a fundamental part of the Court process.
19Justice Jones found that there were no facts that would support a genuine issue for trial and that this was an appropriate case for Summary Judgment. The Applicant had not addressed the mental health concerns raised by the Society or how they would impact on her care of C..
20Once satisfied that the case was an appropriate one for Summary Judgment, the Court was required to turn its mind squarely to the reasons offered by the Society for seeking its findings, including the finding of crown wardship with no access.
21The Court found that C. was a child in need of protection. The Court’s final disposition was to make C. a crown ward with no access for the purposes of adoption. In doing so, Justice Jones relied on the two primary reasons cited consistently by the Society: the Applicant’s mental health and the lack of a viable kin option. She also relied on the legislative time lines in the Act relating to permanency planning which reflects the need for stability cited in Ms. R.F. March […], 2009 Affidavit.
22The Board does not have the authority to weigh in on issues that have been squarely put before and or decided by the Court. In this case, the Society’s reasons for seeking crown wardship with no access were at the heart of the child protection proceedings and have been ruled on by the Court pursuant to its obligation to ensure fair process.
23The Board has no jurisdiction to hear this matter. The Board grants the motion of Society and will not hear the complaint.
Sheena Scott Presiding Member
John Gates Panel Member
Aida Graff Panel Member
Dated at Toronto, Ontario on this 20th day of October, 2009