SD v. Children’s Aid Society of the Districts of Sudbury and Manitoulin, 2019 CFSRB 32

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SD Applicant

-and-

Children’s Aid Society of the Districts of Sudbury and Manitoulin Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: July 05, 2019 Citation: 2019 CFSRB 32 Indexed As: SD v Children’s Aid Society of the Districts of Sudbury and Manitoulin (CYFSA s.120)

WRITTEN SUBMISSIONS

SD, Applicant Self-represented

Children’s Aid Society of the Districts of Sudbury and Manitoulin, Respondent Dawn Dubois, Counsel

Introduction

1On January 10, 2019, the Applicant filed this Application under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1 (the “Act”).

2It was unclear, based on the material before the Child and Family Services Review Board (“CFSRB”), whether the Application was eligible to be heard. On January 21, 2019, a teleconference was held with the parties to discuss next steps.

3During the teleconference, the Respondent submitted the CFSRB does not have jurisdiction to hear the Application because the Applicant’s complaints were dealt with by the Court in the April 5, 2017 and September 25, 2017 decisions of Justice Lebel of the Ontario Court of Justice (the “Court”). The Applicant submitted there are complaints that were not dealt with by Justice Lebel.

4The January 21, 2019 Case Management Direction (“CMD”) directed the parties to provide written submissions on the CFSRB’s jurisdiction to hear this Application. The CMD directed that the submissions “shall specifically address the decision of the Ontario Court of Appeal in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441 (“DD”) and the impact of that decision on the facts of this case”. The CMD included information on how that decision could be accessed online.

5For the reasons set out below, the CFSRB has jurisdiction to hear the Applicant’s complaint about kinship. It does not have jurisdiction to hear the remaining complaints because they were before the Court or decided by the Court.

the law

6Subsection 120(8)(a) of the Act states:

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

Court Proceedings

7The following facts are taken from the Court’s decisions.

8The Applicant is the mother of RT and ST.

9RT was born on December 21, 2012. ST was born on April 9, 2015 at 29 weeks and four days gestation.

10On August 6, 2016, ST was taken was taken to the hospital by ambulance. The medical testing that was conducted disclosed subdural and retinal hemorrhaging, healing fractures to the humeri, the ribs, the right tibia and fibula, healing fractures to the right tibia and an acute transversal fracture to the right fibula, no signs of healing to the right side of rib #9.

11The physicians who treated ST concluded that ST had been the victim of child abuse and reported that finding to the Respondent. RT and ST were immediately apprehended by the Respondent and it commenced an application before the Court seeking a finding that both children were in need of protection. The Respondent also called the police.

12The child protection trial proceeded over the course of ten days in September and October 2016. With respect to ST, the only issue before the Court was whether or not her injuries were caused as a result of trauma (non-accidental) as opposed to medical reasons. With respect to RT, the issue was whether she was at risk of harm if one of her parents had caused the injuries to ST.

13The Court released its decision on April 5, 2017. The Court concluded that ST’s injuries were the result of medical causation and were not caused by any actions or omissions by her parents. As such, the Court held that ST was not a child in need of protection. The Court held further that RT was not a child in need of protection.

14Following the child protection trial, the Applicant and her spouse sought costs against the Respondent on the following bases:

a. The trial was unnecessary;

b. The Respondent exhibited a skewed and biased perspective throughout the litigation;

c. The Respondent ignored the fact that the police declined to lay charges after a full investigation;

d. The Respondent retained an expert for the sole purpose of attacking the parents’ expert witness;

e. The Respondent insisted on seeking a protection application for RT despite having no evidence that she was at risk of harm, and against the advice of the case management judge.

15By decision dated September 25, 2017, the Court declined to order costs against the Respondent. It disagreed that the trial was unnecessary. The Court stated the sole issue was whether or not ST’s injuries were as a result of non-accidental injuries or medical in nature. The Court found the Respondent had not conducted itself unreasonably in the litigation. The Court confirmed that it was required to make extensive findings of credibility with respect to the four medical expert witnesses. Finally, the Court held the child protection file was investigated thoroughly by health professionals. While the Court disagreed with the conclusions reached by one of doctors and her team, it did not fault the Respondent for proceeding on the basis of those conclusions at trial. The Court stated that had the Respondent withdrawn its application on the basis of the parents’ expert report, it would not have fulfilled its statutory obligation to protect children.

Complaint to the CFSRB

16In her Application to the CFSRB, the Applicant made the following complaints:

a. The Respondent did not conduct a reasonable investigation of child abuse because it:

i. Did not interview anyone outside of the Applicant’s immediate family and considered her extended family biased;

ii. Found no evidence of abuse to her daughter RT;

iii. Disregarded the report of Dr. Ross;

iv. Gave no credence to the family history of non-violence.

b. The Respondent was biased in its investigation because it ignored ST’s low birthrate, IV fluids for nutrition, vitamin D deficiency, osteopenia, low bone mineral density, dwarfism – hypochondroplasia, and strong, supportive and attentive network of family and friends.

c. The Respondent’s entire case was based on the medical opinion of one doctor. The Respondent failed to look at the totality of evidence.

d. The Respondent provided no options, methods or plans to have the children return to the Applicant’s care. The only way the Applicant and her spouse could prove their innocence was to go to trial.

Analysis

17The Ontario Court of Appeal ruled in DD that the mere existence of a child protection proceeding does not automatically bar the CFSRB from reviewing a complaint about the services an individual has received from a children’s aid society. In DD, the Court held the CFSRB is concerned with whether a society is carrying out its statutory mandate in terms of its dealings with an applicant, namely is the society listening to the applicant’s concerns and explaining its reasons for various decisions that are made? These service-related concerns are properly within the jurisdiction of the CFSRB and are often different from the substantive issue before the court, which in DD, was where the children should be placed (paras. 40-42).

18In this case, the Applicant’s central complaint is that the Respondent’s investigation was biased. This complaint has been broken down into sub-complaints, namely, (a) the Respondent did not conduct a reasonable investigation; (b) the Respondent showed extreme bias in its investigation: (c) the Respondent failed to look at the totality of evidence and instead formed its conclusion based on the opinion of one doctor; and (d) the only way the Applicant and her spouse could prove their innocence was to go to trial.

19The Respondent’s investigation was an issue before the Court on the application for costs. In that application, the Applicant and her spouse asserted the trial was unnecessary. They submitted further that the Respondent exhibited a skewed and biased perspective throughout the litigation, that it ignored the fact that, after full investigation, the police declined to lay charges, and it ignored the psychological assessment that the Respondent had required of them.

20Although the costs application was framed in terms of the litigation, it also focused on the investigation itself. Ultimately, the Court concluded that the file was thoroughly investigated by health professionals and that the Respondent could not be faulted for proceeding to trial on the basis of the medical conclusions reached by those professionals. On this point, the Court stated:

This file was thoroughly investigated by health professionals in Ottawa. Although I did not agree with the conclusions reached by Dr. Ward and her team I cannot fault the Society for having proceeded on the basis of those conclusions at trial. In fact, had the Society simply withdrawn its application on the basis of Dr. Miller’s report, they would not have fulfilled their statutory obligation to protect children.

21The Applicant’s complaint about the way the Respondent investigated the allegations of child abuse was the issue before the Court on the application for costs. In making its decision, the Court adopted the following principles as set out in Children’s Aid Society of Hamilton v. KL, 2014 ONSC 3679, [2014] O.J. No. 2860:

The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate. In my view this is exactly what the Society did in this litigation.

Costs will generally only be awarded against a children’s aid Society in circumstances where the public at large perceive that the Society has acted in a patently unfair and indefensible manner. Such is not the case in this instance.

22The Applicant is seeking redress for the “unimaginable and traumatic experience under the misguided oversight” of the Respondent. She addressed this complaint to the Ontario Child Advocate, the CFSRB and the Respondent. While I understand the Applicant’s desire for accountability, the CFSRB does not have jurisdiction to hear an application if the “subject of the complaint” has been decided by the court or is before the court. In this case, the Court looked specifically at the Respondent’s conduct in the child protection application and the investigation that preceded it. The Court held the Respondent cannot be faulted for proceeding to Court. In coming to this conclusion, the Court rejected the Applicant’s assertion that the Respondent’s investigation was unreasonable, biased and deficient, concluding that the file had been thoroughly investigated. It also rejected her assertion that she should not have had to go to Court to get her children back. In fact, the Court says the Respondent would not have fulfilled its statutory obligation to protect children if it had withdrawn the child protection application.

23In her written submissions on the question of the CFSRB’s jurisdiction, the Applicant makes additional complaints that were not included in her Application.

24First, the Applicant states the Respondent refused to deal with her complaints of May 7, 2018 because it took the position the matter had been dealt with by the Court. The May 7, 2018 complaints are the same complaints that were sent to the CFSRB. I agree with the Respondent that the majority of these complaints were decided by the Court. The Respondent, like the CFSRB, cannot hear a complaint if the subject matter of the complaint is before the Court or decided by the Court under section 119(11) of the Act.

25Second, the Applicant complains about the Respondent’s decision to deny her request to increase the number of approved supervised sleepovers with RT. This request was made during a settlement conference on January 11, 2016 and a consent order was issued that day, permitting three overnight visits per week. A further access order was made on June 28, 2016. Access to RT was clearly before the Court.

26Third, the Applicant complains that the Respondent, through its legal counsel, complained to the Applicant’s legal counsel that the Applicant and her spouse were not cooperating in providing timely updates and were not willing to participate in a kinship assessment. The Applicant states this was not correct – that her maternal aunt participated in a home assessment with another children’s aid society, and the Respondent conducted its own home assessment and interview of the aunt. The Respondent acknowledges that this complaint was not before the Court.

27The Respondent states the CFSRB cannot hear this third complaint because the services were provided to the maternal aunt, not to the Applicant. In my view, that is too narrow a view of the complaint. The complaint involves possible kinship care for the Applicant’s children. That is a service provided by the Respondent to the Applicant. The CFSRB has jurisdiction to hear this complaint.

28Fourth, the Applicant complains that comments made by a judge during a settlement conference on May 19, 2016 that RT should be returned to her parents’ care and that no further medical reports should be procured by the Respondent about ST, were not followed by the Respondent. The fact that these comments were made during a settlement conference indicates that these two issues were before the Court. A motion for interim placement of the children proceeded on June 22, 2016.

29Finally, in her submissions on jurisdiction, the Applicant states the sole issue before the Court was whether ST’s injuries were the result of non-accidental injuries or medical in nature. I disagree. Interim issues were raised during settlement conferences, motions, and the Respondent’s conduct was raised directly on the application for costs. The Applicant and her spouse asserted that the Respondent demonstrated unreasonable conduct in the litigation. That included the investigation that preceded the trial. The Court held the Respondent had not acted improperly and declined to order costs.

30The Applicant’s complaints, with the exception of her complaint about kinship care, were before the Court or decided by the Court and as such, the CFSRB does not have jurisdiction to hear them.

order

31The Applicant’s complaint about kinship care is within the jurisdiction of the CFSRB and will be heard. The other complaints are dismissed as outside of the jurisdiction of the CFSRB.

32The Respondent must respond to the kinship care complaint within ten days of the date of this Decision.

33Upon receipt of the Respondent’s response, the CFSRB will schedule a Pre-Hearing.

confidentiality order

34Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Application with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.