ND v. Kawartha-Haliburton Children’s Aid Society, 2020 CFSRB 30

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

ND Applicant

-and-

Kawartha-Haliburton Children’s Aid Society Respondent

DECISION

Adjudicator: Catherine Bickley Date: April 02, 2020 Citation: 2020 CFSRB 30 Indexed As: ND v Kawartha-Haliburton Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

ND, Applicant Self-represented

Kawartha-Haliburton Children’s Aid Society, Respondent Kristy Davidson, Counsel

Introduction

1This is an Application filed with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

2In a Case Management Direction dated March 6, 2020, the CFSRB directed the parties to make submissions on the CFSRB’s jurisdiction to review the Application. The Respondent made submissions as directed. The Applicant did not make any submissions and the time for doing so has passed.

3This decision explains why the CFSRB cannot review the Application.

the law

4Section 120(8)(a) 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

5The Applicant is the mother of several children. She is separated from her spouse.

6The Applicant’s son, L, was criminally charged with the sexual assault of one of his siblings. He was acquitted. The acquittal is currently under appeal.

7The Applicant has other concerns about L’s behaviour toward people and animals. She is concerned that her spouse is not taking L’s issues seriously and that as a result L is not receiving the treatment he needs and the other children are at risk of being harmed by L while in her spouse’s care.

8The Application includes court documents dealing with custody and access and the criminal proceedings against L. The most recent court document regarding custody and access is a February 5, 2020 order from the Superior Court of Justice, Family Court adjourning the proceeding to June 23, 2020. The children are all represented by counsel in that proceeding. The most recent court document regarding L’s criminal charges is the December 2, 2019 Notice of Appeal of L’s acquittal.

analysis

9The 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).

10The Applicant’s concerns are closely connected to the two proceedings currently before the Court. The custody and access proceeding will determine the level of contact between L and his siblings. It will also determine the scope of decisions that each parent can make regarding the children. The criminal proceeding may lead to treatment for L.

11The Respondent submits that it “does not have the ability to interfere with any of the respective court decisions”.

12Similarly, section 120(8)(a) bars the CFSRB from reviewing an Application where it involves issues that are before a court unless the Application raises service concerns separate and different from those issues. There are no such issues in the Application.

13For these reasons, I conclude that the subject matter of the Application is not separate and distinct from the substantive issues before the Court. As a result, the CFSRB is barred by section 120(8)(a) of the Act from reviewing the Application.

order

14The Application is dismissed.

confidentiality order

15Pursuant 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.