CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
SMF
Applicant
-and-
Children’s Aid Society of Toronto
Respondent
INTERIM DECISION
Adjudicator: Daniel McSweeney
Indexed As: SMF v Children’s Aid Society of Toronto (CYFSA s.120)
WRITTEN SUBMISSIONS
SMF, Applicant
Self-represented
Children’s Aid Society of Toronto, Respondent
Chithika Withanage/Karen Freed, Counsel
Introduction
1On October 24, 2019 an Application was filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”). The CFSRB found that the Application was eligible to proceed under subsections 120(4) (4) and (5) of the Act.
2On November 4, 2019, the Children’s Aid Society of Toronto (the Society) submitted a letter to the Child and Family Services Review Board (“CFSRB”) requesting that the Application be dismissed for two reasons: firstly, the Society was unable to discern the subject matter of the complaint and relief sought; and secondly, the CFSRB does not have jurisdiction to review a matter that is within the purview of the Court, pursuant to s. 120(8). The Society argued that the Applicant admitted that her complaints are within the purview of the Court.
3In a Case Management Direction, the CFSRB directed the parties to provide written submissions on the CFSRB’s jurisdiction to hear the Application, especially as it related to the impact of the Ontario Court of Appeal in Children’s Aid Society of Waterloo v. D.D., 2011 ONCA 441 on this case.
4The Society’s submissions indicate that the Applicant’s concerns are not service-related. The submissions reiterated the same two concerns identified in paragraph 2 above and some of the Applicant’s concerns did not form the proper subject of a concern or complaint. As such, the CFSRB does not have jurisdiction to review the Application.
5In her submissions, the Applicant argued that she made a complaint to the CFSRB as the Society has not been clear in providing her with reasons regarding the return of her children; workers have ignored her concerns in relation to the safety of her children and of her former partner. The Society also used information provided by the Applicant against her. The Society has also included false information about the Applicant in documents submitted to the Court.
6After consideration of all the evidence before it, and for the reasons set out below, I dismiss the Application in part.
the law
7Subsection 120(4) of the Act provides that,
The following matters may be reviewed by the Board under this section:
- Allegations that the society has failed to comply with subsection 15(2)
[which provides that “[s]ervice providers shall ensure that children and young persons and their parents have an opportunity 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.”]
- Allegations that the society has failed to provide the complainant with
reasons for a decision that affects the complainant’s interests.
8Subsection 120(8) 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
9Two of the Applicant’s children were placed in the temporary custody of their paternal grandmother on October 18, 2018. This was done with the consent of the Applicant. The Applicant was granted access visits at the discretion of the Society. On February 26, 2019, the children were placed in the temporary care of their father because of concerns with the Applicant’s mental health and lack of supervision.
analysis
10Both parties have provided evidence that issues of custody and access regarding the Applicant’s two children have been before the Court and have been decided by the Court. Despite this, I considered whether there were aspects of the Applicant’s claim that went beyond the issues that were before the Court.
11The 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).
12The CFSRB cannot deal with any part of this Application which is exclusively within the jurisdiction of the Court. I carefully reviewed the Application, submissions and documents before me and found that the CFSRB does not have jurisdiction to deal with the following areas of the Applicant’s complaint:
The reasons for the children being apprehended
Statements or information included in affidavits by Society staff that were before the Court, including allegations of false statements in affidavits
Alleged breaches of Court Orders by the children’s father
Any decision-making processes subject to the Labour Relations Act, 1995 (s. 120(8)(b)) which may include issues related to the Applicant’s former worker
13I do find, however, that the CFSRB has jurisdiction to consider the following issues raised by the Applicant in her complaint:
Concerns related to alleged privacy breaches by Society staff
Allegations of not being heard and receiving disrespectful comments by Society staff e.g. being told that she will never get kids back by the supervisor
Whether the Applicant was informed that her worker had been removed from her file and, if she was, the method of being informed
Allegations that the Society has continued to ignore the Applicant’s safety concerns for her children while they are in the custody and care of their father that occurred outside any Court proceedings (protection application and status review). The Applicant mentions the following concerns: son being slapped; daughter stating that she wants to kill herself; children witnessing alleged mistreatment of their father’s wife; children being threatened if they call their mother outside of prescribed hours; however, more information is required to ascertain if these concerns are before the Court or have been decided by the Court
Concerns regarding possible collusion against her by staff in favour of the children’s father
Concerns that records of malicious calls to the Society about the Applicant are being held against her
Not being informed of the impact of the staying of her charges on the decisions of the Society
Not being provided with reasons as to how she can get her 2 children back despite completing all the Society requirements
Not being provided with reasons as to why she is able to keep her infant but not have her other 2 children returned
14The CFSRB has jurisdiction to deal with these parts of the Application or and/or may require additional information on the allegations related to the Society’s lack of response to the Applicant’s safety concerns for her children in order to ascertain its jurisdiction pursuant to subsections 120(4) (4), (5) and (8) of the Act.
ORDER
15The Respondent’s request is dismissed in part. The parties will focus on the issues for which the CFSRB has jurisdiction as outlined in paragraph 13 (above).
NEXT STEPS
16The parties will be contacted by a case processing officer to schedule a pre-hearing to prepare for a hearing on the merits of the Application as it relates to the issues cited in paragraph 13 (above). The opportunity to participate in mediation will be offered at the pre-hearing.
confidentiality order
17Pursuant 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.
Dated at Toronto, December 24, 2019.
Daniel McSweeney
Daniel McSweeney
Member