AM v. Children’s Aid Society of the Region of Peel, 2020 CFSRB 109

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AM Applicant

-and-

Children’s Aid Society of the Region of Peel Respondent

DECISION

Adjudicator: Daniel McSweeney Date: December 11, 2020 Citation: 2020 CFSRB 109 Indexed As: AM v Children’s Aid Society of the Region of Peel (CYFSA s.120)

WRITTEN SUBMISSIONS

AM, Applicant Self-Represented

Children’s Aid Society of the Region of Peel, Respondent Lashell Eaton, 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 a son (“Children”). The complaint alleged the following issues/concerns:

1. The Respondent has been used by the Applicant’s ex-husband to undermine custody and access agreements by receiving and investigating his complaints against the Applicant;
2. The Respondent has ignored the professional advice of other agencies related to the Applicant’s abilities as a parent; and
3. The Respondent has disregarded the Applicant’s expressed concerns regarding the health and safety of the Children associated with the Applicant’s ex-husband’s parenting style, actions and abilities.

4The Respondent argued it its Summary Response that the issues/concerns raised by the Applicant in the complaint are wholly before the Ontario Court of Justice in ongoing child protection proceedings. The Applicant has legal counsel in the proceedings. The issues raised by the Applicant are substantive issues of child protection, custody and access which fall outside the CFSRB’s mandate. As such, the Respondent requests that the complaint be dismissed as per section 120(8) of the Act.

5The Respondent provided the following documents in support of its reply: Statement of Agreed Facts in the Child Protection Application; Final Order of Justice Clay; Status Review Application dated January 31, 2020; and Applicant’s Answer and Plan of Care dated March 2, 2020.

6In a Case Management Direction (CMD) dated November 16, 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.

7The Respondent reaffirmed that the issues in the Applicant’s complaint were issues of substantive child protection custody and access which fell outside the CFSRB’s mandate.

8The Respondent provided the following additional documents along with its submissions: Child Protection Application dated November 30, 2017; Notices of Motion dated November 30, 2017 and August 16, 2018; Affidavits of Worker Erica Lee sworn November 30, 2017 and August 15, 2018; Affidavit from the Applicant sworn August 24, 2018; Amended Child Protection Application dated July 31, 2018; and e-ail from Privacy and Disclosure Associate dated December 2, 2020.

9In response to the Case Management Direction, the Applicant sent the CFSRB an e-mail indicating that she was represented by Counsel and that he would respond to the request for submissions on the issue of jurisdiction. Counsel clarified by e-mail that he is not representing the Applicant in the CFSRB matter. The CRSFB also received correspondence from a Counsellor at Native Child and Family Services of Toronto confirming that the organization will not participate as a representative of the Applicant in the CFSRB proceedings.

10The CFSRB did not receive submissions from the Applicant by the December 2, 2020 deadline. The CFSRB sent the Applicant an e-mail on December 8, 2020 clarifying that the member is looking for submissions/arguments on one issue: “are the issues in the Applicant’s current complaint similar to issues that were discussed and or presented to the Court or are currently before the Court”. The submissions will help the CFSRB decide if it has jurisdiction to review the complaint.

11Given the Applicant’s confusion regarding her representation; given her lack of legal representation; and given the Applicant’s visual impairment, an extension until December 11, 2020 was provided for submissions.

12The Applicant provided submissions on December 9, 2020. The submissions consisted of arguments and evidence regarding the Applicant’s parenting capacity; her mental health; her academic background; her visual impairment; and other concerns about her ex-husband. The submissions also listed the limitations imposed by the divorce settlement on communication and interaction between the Applicant and her ex-husband. The submissions did not; however, address the issue of the CFSRB’s jurisdiction to review the complaint, as clarified to the Applicant in the December 8, 2020 e-mail.

THE LAW

13Section 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

14The 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

15In analysing the Application, I focused on whether the issues/concerns identified in the complaint had been or are currently before the Court.

16It is clear from the documents provided by the Respondent (Child Protection Application dated November 30, 2017; Final Order of Justice Clay dated September 6, 2019; Applicant’s Answer and Plan of Care dated March 2, 2020) that issues of custody, access and any agreements on these issues have been before the Court since 2017 and continue before the Court into November of 2020.

17The issue of the Applicant’s ex-husband reporting to the Respondent has been raised before the Court. The Affidavit of Erica Lee sworn on November 30, 2017 paragraph 27 outlined the Applicant’s therapist’s comments that the Applicant’s ex-husband has attacked the Applicant’s parenting style; has threatened to have the children removed; and that he has contacted the Respondent to have the Applicant investigated. These issues are part of the Applicant’s current complaint. Paragraph 29 of the same affidavit indicated that it has been noted that the Applicant’s ex-husband has increased his contacts about the Applicant’s conduct and parenting with the Respondent. Given the content of the affidavits, I find that the issue of the Applicant’s ex-husband’s many reports to the Respondent regarding her parenting have been raised before the Court.

18Issues of custody and access and adherence to Orders are the purview of the Court and not the CFSRB. The Applicant is and has been represented in various proceedings since 2017. She and her Counsel are free to raise any concerns with impact of the Applicant’s ex-husband’s reports to the Respondent on access and custody issues during Court proceedings.

19The Applicant alleged that the Respondent has not taken into consideration the professional advice of agencies regarding her parenting ability. The Respondent has provided evidence that the Applicant has participated in various parenting development and counselling programs over the years. For example, the affidavit of Erica Lee sworn on November 30, 2017 addressed the Applicant’s involvement in Parenting Teen and Family Futures programs; post separation parenting program; and counselling with her therapist. The Notice of Motion dated August 16, 2018 directed the Applicant to engage in counselling. The Statement of Agreed Facts dated August 30, 2019 indicated that the Applicant has been working with a parenting coach since April 2019; that she has been attending the Triple P Parenting Programs; and has attended the Women’s Empowerment Group at Native Child and Family Services. The Status Review Application dated January 31, 2020 reported on the Applicant’s completion of the Women’s Empowerment Group, and her work with the Child Youth Worker, and the Applicant’s ongoing need to implement techniques that she leaned through the program.

20Given the various mentions of the Applicant’s participation in various parenting support and counselling programs highlighted above, I find that issues related to the Applicant’s parenting capacity were before the Court. The Applicant is free to address any of her concerns with the Respondent’s assessment of the evidence regarding her parenting capacity, and/or was free to adduce her own evidence in support of her parenting capacity in her responses to the Statement of Agreed Facts or the Status Review Application. As such, I find these issues were before the Court and are exempted from review by the CFSRB.

21The Status Review Application dated January 31, 2020 speaks of ongoing conflict between the parents and the impact that this has had on the Children. The Applicant’s complaint speaks of the Children’s father’s parenting skills and abilities to understand and parent the children. The Affidavit by Erica Lee sworn on August 15, 2018 discussed the Applicant’s concerns with her ex-husband’s parenting. The Applicant’s affidavit sworn on August 24, 2018 also highlighted some of the Applicant’s concerns with her ex-husband’s parenting. The Applicant’s Answer and Plan of Care dated March 2, 2020 discussed the ex-husband’s parenting and the Applicant’s fears for the safety and well-being of the Children while in his care e.g. using the children as messengers.

22Based on a review of the documents presented by the Respondent, it is clear that the Applicant’s concerns regarding the health and safety of the Children while with their father has been placed before the Court on multiple occasions through multiple documents. As such, the CFRSB does not have jurisdiction to address this issue.

23Based on a review of the submissions and the Protection Application, I find that the CFSRB does not have jurisdiction to review the Applicant’s complaint given that the subject matter of the complaint are issues that have been and are currently 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

24The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

25Pursuant 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.