TB v. Halton Children’s Aid Society, 2019 CFSRB 78

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

TB Applicant

-and-

Halton Children’s Aid Society Respondent

Children’s Aid Society of Ottawa Respondent

DECISION

Adjudicator: Daniel McSweeney Date: November 20, 2019 Citation: 2019 CFSRB 78 Indexed As: TB v Halton Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

Halton Children’s Aid Society Respondent

Jennifer Christian Child Protection Supervisor

Introduction

1On August 19, 2019, the Applicant filed an Application pursuant to section 120(4) of the Child, Youth and Family Services Act, 2017, SO 2017, c14, Sched. 1, (the “Act”).

2The Applicant alleged the following about the Respondent society:

• It did not provide reasons for many of its decisions
• It did not comply with the terms of a previous Settlement Agreement
• It ignored the Applicant’s concerns about her children’s health and safety
• It omitted documents and verification findings in reports
• It did not provide information on changes to supervised access and follow the Court order
• Its staff member lied to the Applicant
• It did not take into consideration the Applicant’s concerns with a particular worker
• It did not provide the Applicant reasons for why her request to have a new worker was denied
• It ignored the Applicant’s concerns regarding an assessment of her child by McMaster University and its decision not to employ another agency
• It failed to take into consideration the Applicant’s concerns regarding the qualifications of assessors

3In its Summary Reply dated August 30, 2019, the Respondent asserted that the Child and Family Services Review Board (“CFSRB”) did not have jurisdiction to review the Application as all but one of the issues (denial of request for new worker) raised in the Application have been decided by the court, are currently before the court, or were dealt with by the CFSRB in a previous Application (CA15-0106).

THE LAW

4Section 120 (8)(a) of the Act states that:

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

5Despite that the Applicant had received services from the Respondent, the CFSRB cannot deal with any part of the Application which is exclusively within the jurisdiction of the court as per Section 120(8)(a) of the Act outlined in paragraph 4 (above).

6The Ontario Court of Appeal ruled in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441, 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 found that complaints about how the children’s aid society had handled the temporary placement of the applicant’s children could proceed before the CFSRB. Those complaints “were separate and different from the substantive issues before the court” (para 35).

7With regard to written proceedings, CFSRB Rule 8.1 indicates that the CFSRB may conduct hearings in writing considering issues including fairness to the parties; expediency; cost and efficiency; nature of issues; need for oral testimony.

BACKGROUND

8In a Case Management Direction dated September 5, 2019, the Applicant was directed to make written submissions on the following 2 questions on or before September 20, 2019:

• Have all the issues raised in the Application (except the request for a change of worker) been decided by the court or are currently before the court or have they already been dealt with by the CFSRB in Application CA15-0106?
• Does the Respondent’s August 28, 2019 letter explaining its decision to deny the Applicant’s request for a change of worker fulfil the Respondent’s obligations to hear the Applicant’s concerns and provide her with reasons for that decision?

9On September 22, 2019, the Applicant requested a six-week extension of the deadline to consult with counsel and to review the documents submitted by the Respondent. The Applicant was provided with an extension until October 21, 2019. No submissions were received.

ANALYSIS

10As the Applicant did not provide submissions in relation to the case management direction, I have made my decision based on the written documentation (documentary package, Respondent response, and submissions) that I have before me. My decision to conduct this hearing in writing is fair given that the decision turns on two narrow issues: jurisdiction of issues before the court; and the adequacy of the reasons provided by the Respondent for not replacing the Applicant’s worker. The Applicant was provided an opportunity to make submissions on the two issues and failed to provide them, despite being given 45 days to do so. I also find that deciding this Application in writing is appropriate given the principles of judicial economy and efficiency.

Were the issues raised by the Applicant before the court or decided by the court?

11The first issue before me is whether the issues included in the Application were decided by the court or are before the court. I reviewed the Respondent’s summary response and evidence in support of its position that the CFSRB lacked jurisdiction. The Respondent indicated that there are two ongoing court proceedings involving the Applicant and the Respondent. The Applicant has been involved in child protection application proceedings in the Ontario Court of Justice since September of 2016. The Applicant has also launched a civil suit alleging negligence, breach of statutory duty, breach of Charter rights, and defamation on the part of the Respondent. This action arose from the Applicant’s complaints regarding the alleged sexual abuse of her two younger children.

12I have reviewed the Respondent’s response and find that the substantive issues raised by the Applicant have been decided by the Court through the Child Protection Application (CPA) process. For example, issues related to the apprehension of the children, access and custody were addressed in documents submitted to the court. The Applicant raised her concerns about the health and safety of her children during the child protection application proceedings. Concerns related to parenting were addressed through the court ordered capacity assessment. Concerns with unverified allegations of sexual abuse were included in the Child Advocacy and Assessment Program report which was before the Court in the CPA proceedings.

13In addition, the Respondent indicated that the Applicant had filed a complaint with the CFSRB which was resolved through a negotiated Settlement Agreement. I reviewed the Applicant’s former application file (CA15-0106) and found that in the pre-hearing, the Applicant identified that the Respondent had not provided reasons regarding the following issues:

• Safety concerns related to her children
• Health concerns related to the children
• No response related to the McMaster recommendations
• Lack of communication
• Lack of engagement related to decision making

14I find that these issues have been rolled-forward into the Applicant’s current complaint. The Applicant had an opportunity to argue these issues with the respondent in the settlement conference. The Applicant and Respondent arrived at a full settlement as a result of the settlement conference. As such, I find that these issues have been addressed by the CFSRB mediation process.

15Other than the Respondent’s denial of the change in worker (addressed below), I find that the remaining issues put forward in the Application have been substantively addressed by the Court and/or through the CFSRB process in File CA15-0106.

Were reasons provided for the refusal to remove the worker?

16The second issue I must decide relates to whether the Applicant was provided with reasons for the Respondent’s refusal to remove her worker.

17The Respondent provided a written letter to the Applicant dated August 28, 2019 outlining the reasons for its decision. The Respondent’s rationale indicated that the Applicant had asked and received the removal of two previous workers. The Respondent indicated that it could not remove the worker as, if the child protection application were to go to trial, it would not be feasible for a new worker to assume carriage of the file so late in the proceedings. Finally, the Respondent indicated that it no longer had any child protection concerns with the Applicant and was prepared to withdraw the child protection application and close the file.

18I find the Respondent’s letter provided a clear and understandable explanation to the Applicant for its decision. The Applicant’s concerns with the worker were heard and she was provided with sufficient written reasons for the Respondent’s decision.

SUMMARY

19I find that the CFSRB does not have the jurisdiction to address the Applicant’s child protection issues (outlined above) as these issues are currently before the Court or have been decided by the Court.

20In regard to the issue of the Respondent’s refusal to move workers, I find that the Applicant has been provided with sufficient reasons for the Respondent’s decision.

ORDER

21I dismiss the Application.

confidentiality order

22Pursuant 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.