MH v Children’s Aid Society of Hamilton, 2020 CFSRB 103

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MH

Applicant

-and-

Children’s Aid Society of Hamilton

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: November 24, 2020

Citation: 2020 CFSRB 103

Indexed As: MH v Children’s Aid Society of Hamilton (CYFSA s.120)

WRITTEN SUBMISSIONS

MH, Applicant

Self-Represented

Children’s Aid Society of Hamilton, Respondent

David Sider, Counsel

INTRODUCTION/BACKGROUND

1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched.1, (the “Act”).

2The Application was found eligible to proceed under sections 120(4)4 and 120(4)5 of the Act. The allegation is that the Applicant was not given the opportunity to be heard and represented when decisions affecting her interests were made, or a chance to be heard when she raised concerns about the services she is receiving. The Respondent is alleged to have failed to provide the Applicant with reasons for decisions that affected her interests.

3The Applicant is the mother of a daughter and son (“Children”). The complaint alleged the following issues/concerns:

1. That the Respondent failed to hear the Applicant’s concerns that the Children were being abused by their father and their ongoing need for protection from him;

2. That the Respondent failed to hear the Applicant’s concerns regarding her daughter’s recent fall and concussion while on an access visit with her father; and

3. That the Respondent has refused to take a position on the father’s access.

4In a Case Management Direction (CMD) dated November 6, 2020, the parties were directed to provide written submissions on the CFSRB’s jurisdiction to hear the complaint. They were asked to refer to the Ontario Court of Appeal decision in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441. The Respondent was directed to consider that Rule 21.2 of the CFSRB’s Rules of Procedure which requires a children’s aid society relying on section 120(8)(a) of the Act to provide “all relevant documents and any Court orders”.

5In its Summary Reply to the Application, the Respondent indicated that it considers the information provided by its clients in making safety decisions; however, this information cannot be the sole basis for such decisions.

6The Respondent indicated that the Applicant is currently a party in an ongoing Family Court Proceeding. The Applicant’s regular reports to the Court and to the local CAS of child safety concerns have caused the Court to direct the Applicant not to make further reports of chid safety concerns to the Respondent. As such, the subject of the Application is within the jurisdiction of the Court and its ongoing proceedings and the CFSRB does not have jurisdiction to hear the Application pursuant to section 120(8).

7In its written submissions, the Respondent argued that the Court will address the CAS investigations and their outcomes. In addition, the Applicant is party to a Contempt Motion dealing with access which continues to remain open before the Court. The Respondent argued that the facts of the current case are distinguishable from the Children’s Aid Society of Waterloo v. DD case as access issues are currently before the Court at the time of the application. The issues in the Contempt proceedings relate to the Applicant’s concerns that the children are not safe with their father. The issues are the same as those in the CFSRB complaint.

8The Respondent requested that the Application be dismissed due to a lack of jurisdiction as the issues in the complaint are before the Court in ongoing Family Court proceedings; as well as in the Contempt Motion.

9By contrast, the Applicant submitted that the CFSRB has jurisdiction to review the complaint as there is no ongoing custody and access dispute before the Court; rather there is a Contempt Motion before the Court. The Applicant says the August 9, 2020 incident has not been raised with the Court for consideration as that proceeding is a contempt motion and not a custody and access dispute. The Applicant’s remaining submissions did not focus on the issue of jurisdiction, rather they presented the Applicant’s evidence and arguments to the Respondent’s Summary Reply and Submissions.

THE LAW

10Section 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

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).

ANALYSIS

12In analysing the Application, I focused on whether the issues/concerns identified in the Application had been or are currently before the Court.

13The Respondent provided a Notice of Contempt Motion filed with the Court on February 5, 2020. The Motion addresses issues of custody and access. The Respondent argued that the reasons for the Applicant’s failure to adhere to the custody and access order of October 15, 2019 were her concerns with the safety and well-being of the Children during access visits with their father. I find that the Respondent provided evidence that this motion remains before the Court and therefore the Court is the most appropriate forum in which the Applicant to raise her concerns regarding the safety and well-being of the children during access.

14I further note that the Applicant’s affidavit to the Court dated August 4, 2020 addresses allegations of ongoing abuse of the Applicant’s son by his father. The Affidavit indicated that the Applicant raised safety concerns with the Respondent. The Affidavit also outlined concerns that the Children’s father is not socially distancing and the Applicant’s concerns of COVID exposure to the Children. The Children’s father responded to these concerns in his Affidavit dated August 9, 2020. It is clear from the Affidavits presented by both parties at Court, that issues of the health and well-being of the Children have been raised and are currently before the Court in the form of the Contempt Motion.

15The Respondent provided evidence that it has been asked to provide the Court with documents regarding the outcome of various child protection investigations. The Respondent has provided a letter from the Children’s father’s counsel to the Applicant’s counsel ensuring that the Applicant has allowed the Respondent to provide the Children’s Father’s counsel with documents regarding their current involvement so that this can be brought to the attention of Justice Pazaratz.

16Finally, I note that both parties in the Contempt Proceedings have been provided with documents from the Respondent which support the connection and relevancy of the Applicant’s reports of child safety to the Respondent and the ongoing Motion over access issues e.g. the letter sent by the Respondent to the Applicant and the Children’s father dated September 17, 2020 outlining its position regarding various allegations of abuse of the children. In addition, the parties were sent a letter on October 6, 2020 outlining the various child protection referrals and their outcomes. This letter addressed the Applicant’s allegations of a lack of supervision by the father during an August incident outlined in her complaint. The parties are free to use this communication in the ongoing Contempt proceedings.

17I therefore find that the Respondent has provided information regarding the issue of access in terms of its correspondence to parties’ counsels which will be used in the Contempt Motion proceedings. The Respondent’s decision not to take a position regarding access is in fact taking a position of neutrality.

18For the reasons outlined above, I find that all the Applicant’s concerns have been addressed in the evidence presented in relation to the Contempt Motion. As such, the CFSRB does not have jurisdiction to review the complaint as the issues in the complaint are squarely before the Court and therefore fall outside the CFSRB’s jurisdiction as per sections 120(4), 120(5), and 120(8) of the Act.

ORDER

19The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

20Pursuant to Rules 9.3 and 9.4 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.