LV v Jewish Family and Child Services, 2020 CFSRB 120

CHILD AND FAMILY SERVICES

REVIEW BOARD

BETWEEN:

LV

Applicant

-and-

Jewish Family and Child Services

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: December 29, 2020

Citation: 2020 CFSRB 120

Indexed As: LV v Jewish Family and Child Services (CYFSA s.120)

WRITTEN SUBMISSIONS

Jewish Family and Child Services, Respondent

Arthika Srivarapathy, 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 son (“Child”). The complaint alleged the following issues/concerns:

1. Respondent staff bothered the Applicant during her labour and forced her to see psychiatrists during her labour;

2. The Respondent failed to provide the Applicant with sufficient notice before the Child Protection hearing;

3. The Respondent failed to hear the Applicant’s arguments regarding her ability to parent the Child and placed more weight on the baseless concerns expressed by the Applicant’s brother-in-law;

4. The Respondent did not seek out someone to assist the Applicant and her partner care for the Child before placing him in foster care;

5. The Respondent failed to hear the evidence presented by medical professionals regarding her mental health (autism, ADHD diagnosis) and continues to maintain that the Applicant has mental health concerns despite medical evidence to the contrary;

6. The Respondent failed to take into consideration the Applicant’s behaviour during access visits in relation to her ability to care for the Child;

7. The Respondent has not heard the Applicant’s concerns regarding her not requiring services of the Trauma Centre;

8. The Respondent has not provided sufficient and timely parenting supports to the Applicant and her partner;

9. The Respondent delayed access visits with the Child for two months;

10. The Respondent failed to respect the Applicant’s position regarding the faith of the Child;

11. The Respondent did not clearly explain to the Applicant that they were extending the 4-month Temporary Care Agreement;

12. The Respondent has failed to hear the Applicant’s concerns that the foster mother wants to keep the Child; and

13. The Respondent failed to hear the Applicant’s concerns related to the health and safety of the child while in the care of the foster parents.

4The Respondent argued in its Summary Response that the CFSRB does not have jurisdiction to review the complaint as the issues in the complaint are part of ongoing child protection proceedings before the Court. As such, the CFSRB is barred from reviewing the complaint pursuant to section 120(8) of the Act. The Applicant has had and will have the opportunity to raise her concerns with respect to the Respondent’s involvement directly before a judge.

5In a Case Management Direction (CMD) dated November 25, 2020, the Applicant was directed to provide written submissions on the CFSRB’s jurisdiction to hear the complaint as per section 120(8) of the Act. The Applicant was 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 provide required documentation to the CFSRB pursuant to Rule 21.2 of the CFSRB’s Rules of Procedure. The Respondent submitted the following documents in support of its lack of jurisdiction argument:

• Temporary Care Agreement dated April 8, 2020;

• Child Protection Application filed August 17, 2020;

• Affidavit by Child Protection Worker dated August 17, 2020;

• Notice of Motion dated August 17, 2020;

• Endorsement adjourning proceedings until September 29, 2020;

• Motion Form adjourning proceedings until December 1, 2020; and

• Endorsement dated December 1, 2020 adjourning proceedings until January 15, 2021.

6The Applicant did not provide submissions on the issue of jurisdiction. Since submitting the complaint, the Applicant sent the CFRSB approximately 30 e-mails which included photos, a letter of support, supporting evidence, and arguments in support of the merits of her complaint.

THE LAW

7Section 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

8The 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).

9Rule 24.2 of the CFSRB Rules of Procedure indicates that the hearing: “may proceed in person, by telephone or other form of electronic technology, in writing or by any combination of those forms the CFSRB considers appropriate, unless a party satisfies the CFSRB that there is good reason not to proceed in writing or that proceeding by telephone or other electronic technology will cause significant prejudice”.

10Rule 8.1 indicates that the CFSRB has discretion to conduct hearings in writing after considering several factors which include: fairness and accessibility; efficiency in the process; convenience of the parties; and whether oral testimony is likely to be needed.

ANALYSIS

11In analysing the Application, I focused on the CFSRB’s jurisdiction to review the complaint as it relates to section 120(8) of the Act. In addition, I addressed the Applicant’s concerns regarding notice for Court; and her concerns with the safety of the Child while in the care of the foster mother.

12The protection proceedings include a Protection Application heard on August 20, 2020 which resulted in a temporary order placing the Child in the care and custody of the Respondent with access to both parents at the Respondent’s discretion. A Case Conference was scheduled for December 1, 2020 which has been put over until January 15, 2021.

13A review of the Affidavit from the Child Protection Worker dated August 17, 2020, indicated that the following issues were presented before the Court: reasons for referral and history of Respondent involvement with the Applicant; the Applicant’s lack of caregiving and parenting skill and requirement for consistent parenting supports; concerns with domestic conflict; the Applicant’s mental health/learning disability issues and diagnoses; the Applicant’s failure to follow-up on parenting and mental health support referrals; the Applicant’s partner’s alcohol abuse, impaired driving and other charges, minimization of concerns, and failure to follow-up with Respondent staff; access at the discretion of the Respondent; the requirement for ongoing parenting supervision by the Respondent; the Temporary Care Agreement; goals for the parents to work towards to address protection concerns; parenting concerns observed during supervised access sessions; and the Respondent’s exploration of a kin placement.

14The April 8, 2020 Temporary Care Agreement addresses the issue of access (frequency, duration, location, and level of supervision); concerns with the Applicant’s mental health history and cognitive understanding; parenting concerns; requirement for parenting supervision; presence of domestic conflict; and alcohol misuse by the Child’s father; and the placement of the Child in a home which practices Jewish customs.

15The Motion Form dated September 29, 2020 indicated that both parents had recently retained counsel and are committed to working cooperatively with the Respondent and will engage in programming. Proceedings were put off until a case conference on December 1, 2020. The December 1, 2020 Endorsement addressed the following issues: Applicant’s parenting skills; the father’s limited interaction in access; the failure of the couple to attend domestic violence counselling; the mother’s agreement to attend counselling; and efforts to identify kin placements. In addition, on December 1, 2020 the Court directed that an all-party meeting take place to review the Respondent’s expectations; counselling schedule; discuss kin alternatives; review statement of agreed facts and findings; importance of statutory time limits; and discussion regarding social media postings.

16From the evidence presented at Court, it is clear that issues related to the reasons for the apprehension of the Child, including issues on or around the birth of the Child; the Applicant’s parenting abilities; the Applicant’s mental health and learning concerns; the requirement for ongoing counselling; concerns with the Child’s father; kin placement; placement of the Child in a Jewish home; and access have been and continue to be before the Court. As such, I find that the CRFSRB does not have jurisdiction to review issues 1, 3, 4, 5, 6, 7, 8, 9, 10, and 11.

17I considered the Applicant’s concerns regarding notice for Court proceedings. Issues regarding notice and court processes are outside the CFSRB’s jurisdiction and can be addressed at the Court. Therefore, I dismiss issue 2.

18I considered the Applicant’s concerns that the foster mother intends to keep the Child and the Applicant’s concerns regarding the care and safety of the Child while in the care of the foster mother. Based on the provisions of CFSRB Rule 24.2, and Rule 8, I have decided to address these two issues in writing as they are both discrete and simple issues that can be addressed by an examination of the facts. In addition, I find that no additional oral testimony is required for me to address the issues. Deciding these issues in writing will give the parties some closure in the CFSRB proceedings before their next case conference scheduled for January 15, 2021. Finally, given the constraints and challenges related to COVID-19, dealing with the issues in writing is most efficient.

19I note that the Respondent clearly indicated that the foster mother has not become involved in any Court proceeding or has not presented any intentions or plan to pursue a long-term placement. The Respondent continues to seek out plans that involve the Applicant and/or kin. The Applicant did not provide any evidence in support of her impression that the foster mother wanted to keep the Child. As such, I find that the Applicant’s concerns have been heard by the Respondent and the Applicant has been provided with a sufficient response to this concern from the Respondent.

20The Applicant cited concerns with the care of the child while in the foster home: the Child being dropped once and the accidental hitting of the Child on the car seat handle. The Respondent indicated that these two concerns were reported to Respondent staff, investigated, and reported to the Applicant. The Respondent has taken appropriate steps to investigate and follow-up these concerns, to report the concerns to the Applicant and to report to the Applicant any need for follow-up.

21Given the Respondent’s evidence in the Summary Response, I find that the Respondent has heard the Applicant’s concerns regarding the safety of the Child in the care of the foster mother. Respondent staff have followed-up with the Applicant and have provided an explanation for any actions regarding these concerns. I therefore find that the Applicant has been heard and provided an adequate response to her concerns at the time they occurred and in the Respondent’s Summary Reply. Therefore, I dismiss issues 12 and 13.

SUMMARY

22I find that issues related to notice and scheduling of child protection issues are in the purview of the Court and are not issues to be addressed by the CFSRB in a service complaint. I also find that the Applicant’s concerns regarding the foster mother and the health and safety of the Child while in her care have been adequately addressed by the Respondent when they occurred and in the Summary Reply. In addition, concerns with the safety of the Child while in foster care can be addressed at upcoming Court proceedings. Finally, I find the remaining issues included in the complaint are issues that have been before the Court and are currently before the Court. These issues will be the subject of a case conference on January 15, 2021. The Applicant is represented by counsel and therefore is able to address any of her concerns during the case conference.

ORDER

23The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

24Pursuant 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.