LZ v. Children’s Aid Society of London & Middlesex, 2020 CFSRB 15

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LZ Applicant

-and-

Children’s Aid Society of London & Middlesex Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney Date: February 20, 2020 Citation: 2020 CFSRB 15 Indexed As: LZ v Children’s Aid Society of London & Middlesex (CYFSA s.120)

WRITTEN SUBMISSIONS

LZ, Applicant LZ, Self-represented

Children’s Aid Society of London & Middlesex, Respondent Denise E. Marshall, Counsel

Introduction

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

2On December 17, 2019, the Applicant filed an Application which the Child and Family Services Review Board (“CFSRB”) found eligible to proceed under sections 120(4) and 120(4)5 of the Act.

BACKGROUND

3In her Application, the Applicant highlighted many concerns with her experiences with the Children’s Aid Society of London & Middlesex (the “Society”). She alleged that she was not heard or that workers downplayed or disbelieved her allegations in relation to:

• Concerns about her ex-husband yelling at her daughter when she did not want to attend an access visit with him on November 22, 2019. The Applicant’s daughter fell and hurt herself on this occasion. The Applicant alleged that Society workers blamed Applicant for the incident.

• Concerns that her daughter does not want to attend access with father, becomes sick during and after access, and is forced by workers to attend access with her father.

• Concerns with statements by her daughter that she wants to die.

• Concerns with child witnessing incidents of domestic violence, rape, and threats by the Applicant’s ex-husband.

• Concerns that her ex-husband and daughter slept in the same bed together, sexual touching “touched bums”, and inappropriate tickling.

• Concerns regarding inappropriate comments made by her ex-husband to her daughter about her body.

• Concerns that her daughter was left alone during supervised access visits with her father.

• Concerns related to history of domestic abuse by her ex-husband, and failure by the Society to take her concerns of abuse and evidence of past abuse seriously.

• Concerns that the Society supports pickup and drop-off at the Applicant’s home despite medical and staff from the Office of the Children’s Lawyer’s disagreeing.

• Concerns that family therapy was suggested which was inappropriate for someone who alleges abuse by an ex-partner.

• Concerns that Society workers blame the Applicant for her daughter taking on the Applicant’s feelings and the feelings of others around her.

• Concerns regarding the risk of sex trafficking of her daughter given her ex-husband’s history with this issue.

• Concerns that she was not provided an opportunity for all her evidence to be considered by Society workers.

4The Applicant alleged that she was not provided with reasons for Society decisions in relation to:

• Why workers made statements regarding and concluded that the Applicant is abusive and a danger to her daughter.

• Why a 3-day stay by the Applicant’s daughter with her grandmother was considered abuse/harm by workers.

• Why workers concluded that the Applicant’s living and working at a group home was deemed abusive of her daughter.

• Why the Applicant has not been provided with consistent dates when her file would be closed (she was told August but open until end of September or beginning of October).

5The Applicant expressed concerns regarding the treatment she received by Society staff in relation to:

• Workers threatening that she would lose her daughter given that she is abusive/danger to her daughter and has alienated her daughter from father.

• Concerns that the worker did not accept or examine evidence provided by the Applicant.

• Concerns with a worker statement that the Applicant lied to police about her rape.

• Concerns with a worker’s conclusion that the rape did not happen and therefore there was no need to investigate.

• Concerns that workers are misquoting the Applicant’s daughter.

• Concerns that the Applicant was accused of recording a conversation by the receptionist, and that the receptionist talked rudely to her, and accused her of lying about file being opened.

• Concerns that workers were lying with regards to her signing paperwork for her ex - husband to have supervised visitation after he was arrested.

• Concerns regarding the stress and emotional damage the process has had on her, her daughter, her husband and mother.

6In its Summary Response to the Complaint, the Respondent argued that the Application should be dismissed without a hearing as the CFSRB does not have jurisdiction to review a complaint that is an issue that is before the court (s. 120(8)(a)). The Applicant has access and custody matters before the court. In addition, the Society denies allegations made by the Applicant. The Respondent indicated that the Applicant was provided with an opportunity to raise her concerns with a worker and Supervisor when decisions affecting her interests were made. The Applicant was provided with reasons for Society decisions on each allegation; however, she was dissatisfied with the results. The Application does not clearly set out a remedy sought, and the Society argued that no meaningful remedy is available. As such, there is no point in proceeding further with the application.

7In a Case Management Direction (CMD) dated January 14, 2020, the parties were asked to provide written submissions on the CFSRB’s jurisdiction as it related to Subsection 120(8)(a) of the Act bearing in mind the Ontario Court of Appeal decision in Children’s Aid Society of Waterloo v. D.D., 2011 ONCA 441.

8In addition, the Respondent was directed to Rule 21.2 of the CFSRB’s Rules of Procedure which provides that where a children’s aid society raises subsection 120(8)(1) as a bar to the CFSRB’s review of an application:

the society must provide submissions in support of its position and attach all relevant documents and any Court orders to the response

9The Applicant provided 76 pages consisting of CAS case notes, CPIN notes, documents, photos, pages of personal commentary, clinician letter, police reports, Family Court Consent Endorsement Request, and handwritten notes on documents. None of the documents or the handwritten notes addressed the directions in the CMD. In the covering letter of her response, the Applicant indicated that she wanted a particular Society worker to be held accountable for not doing her job fairly and she cited several examples from her complaint (see paragraphs 3-5 above).

10In its response to the CMD, the Society argued that the Applicant was not satisfied with the Society’s investigations and disagreed with the conclusions. The CFSRB does not have jurisdiction to assess the sufficiency of the Society’s investigations. In addition, the Applicant alleged that: “no one at CAS has ever showed me any proof they have backing up that I am abusive and a danger to Euphemia”. The Society denies that any staff have alleged that the Applicant is abusive and a danger to her daughter. The Society also reiterated that as per s. 120(7) the CFSRB does not have the remedial power to address the sufficiency of the Society’s investigation and conclusions; and/or to take action that would influence the custody and access proceeding.

11With respect to s. 120(8)(a), the Society argued that no s. 120(4) allegation exists and therefore this Application is distinguishable on its facts from Waterloo CAS v. D.D.

12The Society submitted that the Application should be dismissed without a hearing as the subject of the complaint (access and custody matters between the Applicant and her husband); are issues that are before the court (CYFSA, section 120(8)(a)); or are complaints about her ex-partner which are not about the Society. The Society denied the Applicant’s allegations related to statements made by the child protection worker; and that the Society disregarded her allegations and called her a liar. The Society indicated that the Applicant’s complaints about the nature and sufficiency of Society investigations into abuse allegations were outside the Board’s jurisdiction. In addition, the Society argued that the Applicant has had an opportunity to be heard about the services she received and is dissatisfied with the outcome of the Society’s decisions. Finally, the Society argued that the Applicant did not clearly set out a remedy sought, and that there is no meaningful remedy available to the Applicant as she is seeking to declare the Society’s investigative practice wanting and to alter the Society’s findings and position in her favour.

13The Respondent submitted that the CFSRB should:

• Not consider any issues that fall outside the list of “Matters of Board Review” delineated in s. 120(4)

• Eliminate any issues that are specifically excluded by s. 120(8)

• Limit the remaining issues (if any) to those outlined in the written complaint of December 17, 2019 and do not allow any further issues to be brought forward

• Consider what remedies are being sought and which, if any, are within the CFSRB’s ability to order should any of the eligible grounds be found to have merit

THE LAW

14Subsection 120(4) of the Act provides that,

The following matters may be reviewed by the Board under this section:

4. 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.”]

5. Allegations that the society has failed to provide the complainant with

reasons for a decision that affects the complainant’s interests.

15Subsection 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.

analysis

16The Respondent indicated that the Applicant is currently involved in proceedings before the family and criminal courts. In deciding whether or not this Application should be dismissed in whole or in part because it is outside the CFSRB’s jurisdiction, I must consider the current jurisprudence as well as the contents of the Applicant’s complaint.

17The 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).

18The CFSRB cannot deal with any part of this Application which is exclusively within the jurisdiction of the court. In addition, the CFSRB does not have jurisdiction to address issues which do not relate to a service received by the Applicant, or a decision made by a Society that affected the interests of the Applicant or her daughter.

19I carefully reviewed the Application, submissions and documents before me and found that the CFSRB does not have jurisdiction to deal with any issues that relate to allegations of sexual assault of the Applicant, criminal charges against the Applicant’s ex-husband, and other non-child welfare allegations raised by the Applicant against her ex-husband.

20I considered the direction in DD and have found that the issues listed below are separate and different from the substantive access, custody, and criminal issues before the court. These issues deal with the Applicant being heard regarding health and safety concerns for her daughter; the role of Society staff in implementing access; and the Society’s provision of reasons for its actions in relation to the Applicant’s concerns as well as for decisions and verification decisions it has made.

21Issues related to the Applicant being heard include:

• The Applicant’s concerns related to her daughter’s reaction to access brokered or supervised by the Society, including the November 22, 2019 incident, and the Society’s management of access

• The Applicant’s concerns with the health and safety of her daughter including statements by her daughter that she wants to die; allegations of inappropriate touching and comments by the Applicant’s ex-husband toward his daughter; alleged risk of sex trafficking

• The impact on the Applicant’s daughter’s mental and emotional health of witnessing alleged incidents of domestic violence, rape, and threats by the Applicant’s ex-husband

• Concerns that her daughter was left alone during supervised access visits with her father

• Concerns that family therapy was suggested which was inappropriate for someone who alleges abuse by an ex-partner

• Concerns that Society workers blame the Applicant for her daughter taking on the Applicant’s feelings and the feelings of others around her

• Concerns that the Applicant was not provided an opportunity for her all her evidence to be considered by Society workers

22Issues related to alleged failure by the Society to provide reasons for decisions that affected the Applicant’s and her daughter’s interests include:

• Why workers concluded/verified that the Applicant is abusive and a danger to her daughter including findings in relation to her daughter staying with the grandmother; living and working at a group home etc.

• Why the Applicant has not been provided with consistent dates when her file would be closed (she was told August but open until end of September or beginning of October).

23Service issues with the Society included:

• Alleged negative treatment of the Applicant by workers e.g. bullying and threats of removing her daughter

• Concerns related to a worker making conclusions that incidents of alleged sexual assault did not happen without examining all the evidence and investigating the allegations

• Concerns that workers are misquoting the Applicant’s daughter

• Concerns that the Applicant was accused of recording a conversation by the receptionist, and that the receptionist talked rudely to her, and accused her of lying about her file being open

• Concerns regarding the stress and emotional damage the process has had on her, her daughter, her husband and mother.

24I find that the CFSRB has jurisdiction to deal with the above noted issues in the Application pursuant to subsections 120(4) 4 and 5 of the Act.

ORDER

25For the reasons outlined above, the Applicant’s complaint is dismissed in part. The issues identified in paragraphs 21 – 23 above can move forward through the CFSRB complaints process.

NEXT STEPS

26The 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 paragraphs 21 - 23 above. The opportunity to participate in mediation will be offered at the pre-hearing.

CONFIDENTIALITY ORDER

27Pursuant 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.