CHILD AND FAMILY SERVICES REVIEW BOARD
J.F.
v.
Children’s Aid Society of ALGOMA
(the “Society”)
REASONS FOR DECISION ON JURISDICTION
Indexed as: J.F. v. Children’s Aid Society of Algoma (CFSA s.68)
1The Applicant filed an application with the Child and Family Services Review Board (the “Board”) on August 12, 2015, pursuant to sections 68.1(4)4 and 68.1(4)5 of the Child and Family Services Act, R.S.O. 1990 c.C.11, as amended (the “Act”), regarding a matter relating to services sought or received from the Children’s Aid Society of Algoma (the “Society”).
2The Applicant alleges that the Society has not listened to her service concerns or heard her when decisions were made regarding her newborn daughter (the “Child”) and has not provided her with reasons for decisions that affected her interests.
3The Applicant’s specific complaints were clarified at the motion on jurisdiction by teleconference on September 22, 2016 as follows:
The Society did not proceed to a proper investigation before apprehending the Child considering that the referrals by the midwives were malicious.
The supervision order and what the Society intended to do was not explained to the Applicant
Why did the Society not check with the pediatrician when results from tests were received 48 hours after apprehension and the Child was admitted to hospital.
4The Applicant also raised a concern about the need for the Society to obtain a court order to authorize medical treatment and not just decide by itself. Society counsel did not agree to add that issue to this application given the Applicant was not sure she ever raised it with the Society before applying to the Board.
5The Society takes the position s.68.1(8) applies to prevent the Board from hearing the complaints. In support of its motion on jurisdiction, the Society obtained for the Board and the Applicant the transcript of a hearing held before the Court on [date].
6After considering the evidence and submissions the Board finds it has no jurisdiction to hear issues 1 and 2. The Board has jurisdiction to hear issue 3 but is satisfied the Society provided reasons for its decision at the motion on jurisdiction and therefore further hearing is no longer necessary.
7The reasons for the Board’s decision follow.
BACKGROUND
8The Child was apprehended on [date] after being born at home on [date].
9A child protection application was commenced and on [date] the Court made an interim care and custody order placing the Child with her parents subject to one condition:
That the mother and father shall attend all necessary medical appointments for the child, follow all reasonable recommendations of medical professionals and ensure that the child receives any and all necessary medical care promptly.
10The Society visited the home on [date], [date], [date] and [date] as well as in [year].
11The reason for the Society’s decision to apprehend and request an interim order are set out in the court documents.
12On [date] the Society withdrew its application and terminated its involvement with the Applicant. The Applicant’s request for an award of legal costs from the Society was denied in a decision issued [date].
ANALYSIS
13The Board has the authority to consider the following complaints about a society subject only to s.68.1(8)
68.1(4) The following matters may be reviewed by the Board under this section:
Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68 (1) as required under subsection 68 (2).
Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.
Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.
Allegations that the society has failed to comply with clause 2 (2) (a).
Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
Such other matters as may be prescribed
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; or
(b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995
14The question for me is whether any of the concerns raised by the Applicant were “an issue that has been decided by the court or is before the court”.
Issue 1: The Society did not proceed to a proper investigation before apprehending the Child considering that the referrals by the midwives were malicious.
15In denying the Applicant’s request for costs the Judge made the following findings:
72It is clear that when the Society workers attended at the residence of the respondent parents, they did so with the intention of fulfilling their mandate of protecting the child. I find that the information provided to the Society by the midwives caused the Society to believe that there was a child in need of protection.
73The information provided to the Society came directly from two midwifes and as far as the Society knew, indirectly from a local pediatrician. In this particular circumstance, it would be unreasonable to expect the two Society workers to have the expertise to override these professionals, with their training in pediatrics, and make different preliminary determination in relation to the health of the child.
88This situation was not conductive to a thorough investigation. There was an apparent urgency to it. Having said that, the Society acted upon information provided to it by midwives and a pediatrician. It is reasonable, under the circumstances, that the Society accepted those sources as knowledgeable and reliable.
89In addition, I find that the situation did not permit the extended dialogue that the respondent mother sought to engage in with the Society workers.
16Based on the above it is clear the first issue raised by the Applicant was before the Court and therefore the Board has no jurisdiction to consider it.
Issue 2: The supervision order and what the Society intended to do was not explained to the Applicant.
17Further, it is apparent from the transcript of the [date] court proceeding that the issue of ongoing supervision by the Society was also before the Court. The judge explained to the parents that he considered the undertaking given by the Applicant and her husband to cooperate with the Society and, based on that assumption, the judge imposed only one condition in the supervision order related to medical appointments and follow-up. At page [ ] of the transcript the judge specifically said “I fully expect you to open your door for the Society to come and visit.”
18Counsel for the Society then explained what the expected cooperation would entail at pages [ ] and [ ] of the transcript:
[ ]: I just want to be clear that part- that cooperation will include the workers –worker or workers attending at their home and making regular visits with the family…
[ ]: Right
[ ]: …including getting to see the child and the parents providing information to the workers
[ ]: Right. Even though I am not ordering it, I am expecting some voluntary cooperation.
[ ]: And I just want to make sure that the parents have an understanding of what it-what- cooperation would mean.
[ ]: Right, and again, I think I have tried to emphasize that if there is not that cooperation, the Society can look for more intrusive involvement and their job is not frankly to apprehend kids, it is to assist, and …
[ ]: It will also include, [ ], receiving information in terms of what medical attention the child has received and obtaining information, getting the authorization to obtain the information directly from…
[ ]: Right
19Based on the above it is clear the second issue raised by the Applicant was before the Court and therefore the Board has no jurisdiction to consider it.
Issue 3: Why the Society did not check with the pediatrician when results from test were received [ ] hours after apprehension and Child admission to the hospital.
20The Applicant’s issue is that she was telling the Society that the Child was healthy but the workers were not listening to her. Despite her effort to convince the Society that the Child was fine, the Society kept her hospitalized for [ ] days without considering the health reports released [ ] hours after the apprehension that, according to her, were confirming her view about her child’s health.
21The Society explained at the motion on jurisdiction in an attempt to answer the Applicant’s question that during the time the Child was hospitalized, the hospital had the authority to decide when the Child would be discharged, not the Society. The Applicant asked whether the Society asked for an update on the status of the Child. The Society answered that it did and, based on the hospital’s response, this was why the Society changed its request before the Court for a supervision order only.
22The issue of whether the Society considered the health reports was before the Court. It is after consideration of those health reports that the Society asked the Court to return the Child to her parents and order supervision. The Society’s consideration for the reports was in fact at the center to the proceedings of [date].
23Why the Society did not withdraw its Court’s application after the release of the health reports and decided instead to go to Court within [ ] days of the apprehension is in fact the Applicant’s question. This is an issue for the Court and for the Applicant’s lawyer to challenge before the Court. The decision to proceed to Court within the legislated timeframe of [ ] days is a matter for the Court.
24The Board does not have jurisdiction on this last issue.
CONCLUSION
25In conclusion, the Board grants the Society’s motion on jurisdiction on all issues.
26The file is closed.
CONFIDENTIALITY ORDER
27Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings, except with an order of the Court or the Board, as appropriate.
SUZANNE GILBERT
Suzanne Gilbert
Associate Chair
Dated in Toronto, Ontario on the 21^st^ day of December, 2016