E.M. v. Halton Children’s Aid Society, 2009 CFSRB 63

CHILD AND FAMILY SERVICES REVIEW BOARD

E.M.

v.

Halton Children’s Aid Society

REASONS FOR DECISION

Date: November 4, 2009

Citation: 2009 CFSRB 63

Indexed as: E.M. v. Halton CAS (CFSA s.68)

INTRODUCTION

1E.M. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on August 6, 2009 regarding complaints against the Halton Children’s Aid Society (the “Society”) under section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”).

2At a pre-hearing held on September 3, 2009, the Applicant identified her complaints as follows:

1. The Society continues to claim that her daughter is afraid of her.

2. The Society refuses to accept her claim that she did not consume alcohol while she was on anti-depressants and anti-anxiety medication.

3. The Society has not given her reasons why her unsupervised visits with her child were changed to supervised visits.

4. For the past two summers the Society has refused her request to allow the daughter to go to a summer camp for arts, craft and drama. Instead, her daughter stayed at home to baby-sit other children in the foster home where she resides.

5. The Society does not respect the cultural dietary needs of her daughter and as a result, her daughter is often constipated.

3In a summary reply dated August 17, 2009, the Society states that it currently has a protection application before the Court for Crown Wardship with access regarding the Applicant’s daughter and the Applicant’s complaint is not eligible for review by the Board because the substance of her complaints is before the court.

4The Board conducted an oral hearing on October 26, 2009 to determine whether it has the jurisdiction to review the Applicant’s complaints.

BACKGROUND

5The Applicant is the mother of S.S.K., born November […], 1999. The Society was involved with the family from April […], 2004 to July […], 2004 because of concerns of the parents’ mental health and their ability to parent their daughter. The Society closed the file on July […], 2004 since the child was in the care of the paternal grandparents in [X] and neither parent was residing in Halton Region. Upon returning to Halton Region to the care of her father, the child was apprehended on August […], 2004 and placed in the care of the Society by way of a Temporary Care Agreement dated August […], 2004. On March […], 2005, the child returned to the care of the Applicant with ongoing support services from the Society.

6The Halton Regional Police contacted the Society on August […], 2007 with respect to concerns of the Applicant’s mental health and the hazardous conditions of her apartment. The father agreed to the temporary care of the child while the Applicant improved the condition of the home and managed her depression. The child returned to the care of the Applicant on August […], 2007, with ongoing services from the Society.

7The child was apprehended and a Temporary Care Agreement dated February […], 2008 was signed after police reported to the Society concerns about the condition of the Applicant’s apartment and the child reported the use of physical discipline by the Applicant. On August […], 2008, the child was made a Ward of the Society for a period of seven months. The Society in a Status Review Application currently before the Court is seeking Crown Wardship with access.

JURISDICTION

8The issue is whether the Board has jurisdiction to review the Applicant’s complaints under subsections 68.1(4)4 and 68.1(4)5 of the Act. The Board found that it has jurisdiction to review issues 2, 4, and 5 for the reasons as set out below.

9The application was deemed eligible for review pursuant to subsection 68.1(4)4 which incorporates section 2(2)(a) and subsection 68.1(4)5 of the Act which provide that:

s. 68.1(4) The following matters may be reviewed by the Board under this section:

4. Allegations that the society has failed to comply with clause 2(2)(a).

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

s. 2(2) Service providers shall ensure,

(a) that children and their parents have an opportunity where appropriate 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.

10The Society in its oral motion challenged the jurisdiction of the Board to hear the Applicant’s complaint and relied upon subsection 68.1(8)(a) of the Act which provides as follows:

Section 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.

11The Board will now address each issue.

Issue 1: The Society continues to claim that her daughter is afraid of her.

12The Society stated that it is currently engaged in a Status Review Application before the Court and Court dates have been set for November. The Society submits that the complaints raised by the Applicant have been spoken to directly in Court either orally or in writing or are issues which may arise during Court proceedings.

13The Society noted numerous references to the child being afraid of her mother in Court documents. The Society entered as evidence passages in the June […], 2008 Affidavit of B.G.. Reference was also made to this issue in the February […], 2009 Affidavit of K.D.. The Society noted that this issue was before the Court in the June […], 2008 Application for Child Protection and the March […], 2009 Application for Status Review. The statement that the child was fearful of her mother was also in the Statement of Agreed Facts which was signed by the Applicant on August […], 2008.

14The Applicant argued that her complaints are not before the Court. The Court will determine whether her child will remain a Crown Ward. Her complaints deal with concerns that the Society did not follow proper procedures and that the Society did not listen to her concerns. Her treatment by the Society resulted in her interests being hurt.

15The Board finds it does not have jurisdiction to hear this complaint because it has been before the Court. In this particular case, the issue of the child being fearful of the mother was clearly before the Court since it was included in the statement of facts upon which the Society relied for their Child Protection Application in June of 2008 and also in the current Status Review Application. This is one of the issues in the Society’s Application for Child Protection and this matter has clearly been before the Court.

16Pursuant to subsection 68.1(8)(a) of the Act, the Board finds that it does not have jurisdiction to review this complaint.

Issue 2: The Society refuses to accept her claim that she did not consume alcohol while she was on anti-depressants and anti-anxiety medication.

17The Society argued that the Applicant’s mental health issues are before the Court in the Status Review Application. The Applicant’s use or non-use of medications is an issue which will be before the Court. The Society entered as evidence passages in the following Court documents to indicate that the issue of the Applicant’s mental health was before the Court: Application Child Protection, June […], 2008; Answer and Plan of Care, July […], 2008; Affidavit of B.G., June […], 2008; Affidavit of K.D., February […], 2009; and the Statement of Agreed Facts (Child Protection), August […], 2008.

18The Board finds that the Society did not present any evidence to demonstrate that issue 2 was before the Court. The passages referenced by the Society in Court Documents only spoke to the Applicant’s “mental health”, “depression”, and psychiatric treatment and appointments. There was no mention of the particular issue of the Applicant consuming alcohol while she was on anti-depressants and anti-anxiety medication. The Board has previously determined that an issue must have clearly been addressed by the Court or that the Court must be in a position to address the issue, before the issue is beyond the jurisdiction of the Board.

19The Board finds that it has the jurisdiction to review this complaint. Under subsections 68.1(4) and 68.1(5) of the Act, the Applicant has the right to complain to the Board if she believes the Society has not listened to her denial of consuming alcohol while taking medication.

Issue 3: The Society has not given her reasons why her unsupervised visits with her child were changed to supervised visits.

20The Society entered as evidence the following Court documents with respect to this issue: Application Child Protection, June […], 2008; Affidavit of B.G., June […], 2008; Application for Status Review, February […], 2009; Answer and Plan of Care, March […], 2009; Affidavit of K.D., February […], 2009.

21In particular, the Society, in the Status Review Application, statement of facts dated February […], 2009, spoke to the issue of access for the Applicant and the reasons why access is supervised. The Applicant in her Answer and Plan of Care has asked the Court to return the child to her care and disagreed with the statements of fact filed in the Status Review Application. The Board finds that the issue of access and the reasons for supervised access are before the Court and that the Board does not have jurisdiction to review this issue under subsection 68.1(8)(a) of the Act.

Issue 4: For the past two summers the Society has refused her request to allow the daughter to go to a summer camp for arts, craft and drama. Instead, her daughter stayed at home to baby-sit other children in the foster home where she resides.

Issue 5: The Society does not respect the cultural dietary needs of her daughter and as a result, her daughter is often constipated.

22The Society stated that issues with respect to the treatment of the child by the Society and the care that the child is receiving are relevant to the Court hearing. These issues can be raised by the Applicant in Court and the Society anticipates that these issues will be before the Court. The Society argued that the Board hearing is premature since the issues raised by the Applicant, if not already before the Court, will likely be issues before it. The Society submitted that the Board should hear these complaints after Court proceedings are completed.

23The Applicant argued that her complaint is not about a judge’s decision. Her concerns relate to her daughter’s health and her cultural background. The Applicant is complaining that the Society did not listen to her concerns about the services that the Society was providing for her daughter.

24The Board finds that the Society did not provide any evidence that issues 4 & 5 were before the Court or are currently before the Court. As to the Society’s argument that the Board hearing is premature and that the Board should wait until Court proceedings are complete, there is no requirement in the legislation that the Board should not fulfil its statutory mandate when there are contemporaneous court proceedings. Subsection 68.1(8)(a) of the Act stipulates that the Board will not conduct a review of the complaint if the subject of the matter has been decided by the Court or is before the Court. The legislation only relates to matters dealt with by the Court in the past and present and does not relate to the future. The Board cannot determine jurisdiction based on speculation on which issues will be decided by the Court.

25The Board finds that it has the jurisdiction to hear these issues. The Applicant, under subsections 68.1(4)4 and 5 of the Act, has the right to be heard with respect to the services she and her child are receiving and to be given reasons for decisions which affect their interests.

CONCLUSION

26The Board finds that it has the jurisdiction to review issues 2, 4 and 5 under subsections 68.1(4)4 and 68.1(4)5 of the Act. The Board finds that it does not have the jurisdiction to hear issues 1 and 3.

Gail Gonda

Presiding Member

Heather Hunter

Panel Member

Mary Wong

Panel Member