D.M. v. Children's Aid Society of Ottawa, 2009 CFSRB 68

Child and Family Services Review Board

D.M. v. Children’s Aid Society of Ottawa

Reasons for Decision

WRITTEN REVIEW

Date: November 12, 2009

Citation: 2009 CFSRB 68

Indexed as: D.M. v. CAS of Ottawa (CFSA s.68)

1The Child and Family Services Review Board (the “Board”) received an application from D.M. (the “Applicant”) on October 13, 2009 regarding a complaint against the Children’s Aid Society of Ottawa (the “Society”) pursuant to section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”).

2The Board has determined that an oral hearing is not required in this case as the Board has sufficient information before it to make its decision based on the written material filed. The issue for the Board is whether it has jurisdiction to hear the application.

3On October 20, 2009, the Board determined that the Applicant’s application was eligible to proceed to the next stage of the Board’s process: the receipt of the Society’s summary reply. The application was found eligible under section 68.1 (4) 4 which relates to the Applicant’s right to be heard by the Society and section 68. 1(4) 5 which relates to Applicant’s right to be given reasons for decisions that affect her interests.

4The complaints as set out by the Applicant can be summarized as follows:

1. The Society removed the Applicant’s children from her care without reason;
2. The Applicant wants her children returned to her care;
3. The Court’s decisions were based on false information provided by the Society and other professionals;
4. The Society did not provide her with assistance to help her keep her children, but simply worked to remove her children from her care.

5The Board received the Society’s summary reply to the application on October 26, 2009. The Society also provided copies of Court decisions dated July […], 2007, June […], 2009, a transcript including the decision of Superior Court denying leave to appeal dated January […], 2008 and an endorsement from the Divisional Court dated October […], 2009. The Society’s position is that the subject of the Applicant’s complaint is an issue that has been decided by the courts. The Society relies on section 68. 1 (8) (a) of the Act which provides 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.

6Based on its review of the application and the Society’s summary reply, the Board has determined that it has no jurisdiction to hear the application. The reasons for this decision follow.

BACKGROUND

7The Applicant is the mother of W.M., born July […], 1994, C.M., born August […], 2004, and C.P.M.L., born April […], 2008. The father of W.M. is B.P.. The father of C.M. and C.P.M.L. is M.L.. In its decision released July […], 2007, the Court ordered Crown wardship with access for W.M. and without access for C.M. so that C.M. can be placed for adoption. In its endorsement dated June […], 2009, the Court ordered Crown wardship with no access for the purpose of placing C.P.M.L. for adoption. The Applicant sought, unsuccessfully, to appeal both Orders.

8The Reasons for Decision of Justice Mackinnon dated July […], 2007 relating to W.M. and C.M. address the Society’s reasons for apprehending the boys. These include the mother’s mental health issues, lack of empathy, lack of ability to read the children’s cues, her inability to provide a calm, nurturing environment and her inability to incorporate instruction into changes in her parenting. The Court examined these reasons in reaching its conclusion that the Applicant could not parent the children in part because she lacked insight and an ability to change. The Applicant was represented in the proceedings.

9The Endorsement of Justice Linhares de Sousa dated June […], 2009 relating to C.P.M.L. addresses the basis of the Court’s decision on Summary Judgment. The Court had to decide whether or not the evidence, including the Society’s reasons for taking the child into care, left any room for a debatable issue. The question before the Court was whether there was evidence to warrant a trial about [whether] the mother’s circumstances, including her ability to change, her parenting skills and capacity, had changed since the findings of Justice Mackinnon in relation to the other two children. The Court found that there was no evidence that the Applicant’s circumstances had changed or that she was able to work with the Society under a supervision order to get her children back. The Court concluded that there was no material before it that raised a genuine issue for trial. The Court therefore granted summary judgment ordering Crown wardship without access for adoption purposes. The Applicant was present and represented in the proceedings.

10In both cases, for all of the children, the Court addressed the Society’s attempts to work with the mother. The issue before the Court was whether the mother was able to care for her children and if not, what was the appropriate course of action.

11The Applicant asked the Court’s permission to appeal the decision relating to W.M. and C.M.. On January […], 2008 at a hearing in which she was present, the Court refused her request for permission to appeal. On October […], 2009, the Divisional Court dismissed the Applicant’s appeal with respect to C.P.M.L..

ANALYSIS

12The Applicant has raised concerns relating to the Society’s removal of her children from her care and alleges that the Court’s decisions were based on false information provided by the Society and by other professionals. The Applicant clearly indicates in her application that she wants the children returned to her and Mr. M.L.’s care and that the Society did not provide her with assistance to keep her children, but instead worked to remove the children from her care.

13The Board has no authority to return the Applicant’s children to her or to assess the validity of the decisions made by the Society. The Board’s powers relate to reviewing whether or not the Applicant was heard by the Society in its decision making or regarding concerns about services and whether or not she was provided with reasons for decisions that affected her interests.

14Further, the Board has no jurisdiction to hear complaints if they involve matters that are before the Court or have been decided by the Court. The Society’s reasons for apprehending the children and not continuing to work with the Applicant were placed squarely before the court in the child protection proceedings in which the Applicant participated. The Court has made final decisions that were not changed on appeal, that address the Society’s reasons for taking the children and the attempts at working with the Applicant.

15The Applicant participated in the Court process that involved her being put on notice (made aware of) of the Society’s reasons for apprehending her children and their reasons for not continuing to work with her towards reunification. The Court had to address whether the Applicant had notice of the case against her before it could deal with the child protection application. This is part of the Court’s obligation to ensure the proceedings are fair and that the Applicant had a chance to be heard in those proceedings. Both the Court and the Applicant were aware of the reasons for the Society’s ongoing involvement and for the outcome sought by the Society for the case to proceed to its conclusion.

16The Applicant also raised concerns about “false information” presented to the Court, which she submits influenced the decision of the Court. The proper and only place for the Applicant to address these concerns was with the Court. The Applicant unsuccessfully tried to have a higher level of court overturn both cases.

17In her application, the Applicant also mentions her limited access to C.P.M.L.. C.P.M.L. has been made a crown ward without access. There is no access permitted to C.P.M.L. because of the Court orders. This issue was clearly decided by the Court.

18The Applicant’s complaints relating to the Society’s removal of her children from her care are all issues that have been decided by the Court.

19As a result of the above findings, the Board does not have jurisdiction to hear this complaint.

CONCLUSION

20The Board has no jurisdiction to hear this application.

Sheena Scott

Board Member