AT v Family and Children’s Services of St. Thomas and Elgin, 2020 CFSRB 62

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AT

Applicant

-and-

Family and Children’s Services of St. Thomas and Elgin

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: June 30, 2020

Citation: 2020 CFSRB 62

Indexed As: AT v Family and Children’s Services of St. Thomas and Elgin (CYFSA s.120)

WRITTEN SUBMISSIONS

AT, Applicant

Self-represented

Family and Children’s Services of St. Thomas and Elgin, Respondent

Joyce Dittrich, 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 Respondent is alleged to have failed to provide the Applicant with an opportunity to be heard, and reasons for decisions that affected her interests.

3The Applicant is the mother of HATJ (the “Child”). The Application outlined the following:

1. Concerns about the Child’s mental health.
2. Concerns that the Child is not safe in the care of his father.
3. The Applicant’s desire for increased access with her son, including overnight visits, and to have her son returned to her care.
4. The Respondent’s refusal to remove the Child from his father’s care and either return the Child to the Applicant’s care or place him in a kinship placement.
5. The Respondent’s support of the father’s wish to meet the Applicant’s proposed access supervisors.
6. The Respondent’s failure to provide the Applicant with information regarding the sexual assault allegations, including documents to prepare for the Court hearing.
7. The Respondent’s refusal to allow a supervised visit with the Child the day after he was apprehended.
8. Concerns that the Applicant’s child was coached regarding the sexual assault allegations.
9. Allegations that the Respondent’s staff informed the Child’s father that the Applicant had told them that the Child’s father planned to move with the Child.
10. Mismanagement of the apprehension since October 17, 2018, and the Applicant’s desire that the Respondent take responsibility for the Applicant’s situation and fix the problems e.g. remove or discipline the caseworker.
11. Concerns with the removal of the Child from French Immersion without the Applicant’s knowledge or consent.
12. The Respondent’s refusal to respond to a service complaint submitted by the Applicant’s mother.
13. Concerns that the Respondent will take 8 months to close the Applicant’s file.

4In its Summary Reply, the Respondent argued that the Applicant’s concerns regarding the placement of the Child were decided by the Court on February 6, 2020, and a change in placement is unlikely given that the Child has progressed well during the year that he has been with his father. In addition, the Respondent indicated that the Applicant was not provided with some information related to the sexual assault allegations as these allegations were being investigated by the police. She subsequently was provided with information in Court documents.

5The Respondent continues to have concerns regarding the Applicant’s ability to safely parent the Child. The Applicant and her legal counsel were informed of conditions for the Applicant to resolve the Respondent’s concerns during a Settlement Conference dated February 6, 2020. The Respondent is concerned with the impact of parental conflict on the Child and recognizes the need for both parents to develop safe parenting practices.

6In a Case Management Direction dated June 8, 2020, the parties were directed to provide written submissions on the CFSRB’s jurisdiction to hear the Application based on the provisions of section 120(8) of the Act. Parties were directed to consider and or refer to the Ontario Court of Appeal decision Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441.

7The Applicant’s two sets of submissions reiterate the Applicant’s concerns with the Child’s father, the child’s past experiences, the choice of school, and providing explanations for the concerns the Respondent identified with the Child. In addition, the Applicant reiterated her concerns regarding how the Respondent responded to her concerns. The Applicant also outlined what she felt were her skills and abilities to parent the Child and her progress at meeting the expectations cited by the Respondent.

8The Respondent submitted that the CFSRB does not have jurisdiction to review the complaint as the issues in the complaint are currently before the Court (July 7, 2020) or have been before the Court. The issues were also discussed with the Applicant and her counsel at a Settlement Conference Hearing on February 6, 2020. The Respondent is unable to unilaterally change access and visitation without a decision by the Court.

THE LAW

9Section 120 (1) of the Act provides that, if a person has “a complaint in respect of a service sought or received from a society [and the complaint] relates to a matter described in subsection (4), the person who sought or received the service may decide” to make a complaint to either the society or the CFSRB.

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).

12Section 15(2) of the Act indicates: “service 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.”

13Section 120(1) of the Act provides that, if a person has “a complaint in respect of a service sought or received from a society [and the complaint] relates to a matter described in subsection (4), the person who sought or received the service may decide” to make a complaint to either the society or the CFSRB.

14The Act defines “service” as follows:

“service” includes,

a) a service for a child with a developmental or physical disability or the child’s family

b) a mental health service for a child or the child’s family,

c) a service related to residential care for a child,

d) a service for a child who is or may be in need of protection or the child’s family,

e) a service related to adoption for a child, the child’s family or others,

f) counselling for a child or the child’s family

g) a service for a child or the child’s family that is in the nature of support or prevention and that is provided in the community,

h) a service or program for or on behalf of a young person for the purposes of the Youth Criminal Justice Act (Canada) or the Provincial Offences Act, or

i) a prescribed service; (“service”)

15A “parent” in the Act is defined as:

a) the person who has lawful custody of the child; or

b) if more than one person has lawful custody of the child, all of the person who have lawful custody of the child, excluding any person who is unavailable or unable to act, as the context requires.

ANALYSIS

16In analyzing the claim, I focused on two issues: a) whether the CFSRB had jurisdiction to review the complaint based on the exclusion of s. 120(8); and b) whether the CFSRB had jurisdiction to address the Respondent’s failure to respond to a service complaint submitted by the Applicant’s mother. Each of the Applicant’s concerns identified above are addressed below.

1. Concerns about the Child’s mental health.

17The medical and psychological needs of the Child were addressed in the Temporary Order dated October 22, 2018. The Child’s current mental health status (anxiety and trust issues with his mother, manipulation by his mother) and the Child’s attendance with his therapist and pediatrician were addressed in the Settlement Conference documents dated February 6, 2020.

18I find that the Applicant’s concerns regarding her child’s mental health are not separate and distinct from the substantive issues on this matter placed before the Court. As such, the CFSRB is precluded from reviewing this issue.

2. Concerns that the Child is not safe in the care of his father.

19The Respondent indicated in the Settlement Conference Offer to settle that: “Family & Children’s Services of St. Thomas and Elgin to no longer have involvement with father as he has proven to the Government Organization that he is a competent, loving father and the child (HATJ) is settled and well adjusted at school and at home with his father”. The Applicant was represented at the February 6, 2020 Settlement Conference. She therefore had the opportunity to raise any concerns with the safety of her son which would contradict the Respondent’s findings.

20The Applicant and the Child’s father have been involved in multiple custody and access proceedings since 2015. Issues related to the safety and care of the Child are integral to all custody findings.

21For these reasons, I find that issues related to the Child’s safety in the care of his father have been before the Court. As such, the CFSRB does not have jurisdiction to review these concerns.

3. The Applicant’s desire for increased access with her son, including overnight visits.

22As noted above, the Applicant and the Child’s father have been involved in custody and access proceedings since 2015. Issues of access have been addressed in various orders, including an order that placed the Child with his father, and orders which provided for supervised access by the Applicant. For example, the February 6, 2020 Settlement Conference notes discuss the Respondent’s position that the Applicant required continued supervised visitation. The Respondent clearly identified its concerns with the Applicant’s parenting and what is required for the Applicant to resolve her access concerns.

23The issue of access has been before the Court on multiple occasions and therefore, the CFSRB does not have the jurisdiction to review these concerns.

4. The Respondent’s refusal to remove the Chid from his father’s care and either return the Child to the Applicant’s care or place him in a kinship placement.

24As determined above, issues of access and custody have been before the Courts since at least 2015. The Applicant’s desire to have the child placed with her or with kin was addressed at the February 6, 2020 Settlement Conference. In its response to the complaint, the Respondent indicated that the judge at the last Court appearance on February 6, 2020 informed the Applicant: “a change placement is not likely given the child has now resided with the father for well over one year and is progressing well in his care. However, should she wish the court to remove the child from the father she would need to bring a motion”.

25I find that access and custody issues have been placed squarely before the Court on multiple occasions since 2015, including in February 2020. As such, the CFSRB does not have jurisdiction to review these issues in the Applicant’s complaint.

5. The Respondent’s support of the father’s wish to meet the Applicant’s proposed access supervisors.

26The issue of proposed access supervisors was raised in paragraph 59 of the Child’s father’s sworn affidavit of November 13, 2018. As outlined above, issues of supervised access were discussed in the Settlement Conference documents presented to the Court on February 6, 2020.

27As such, I find that the CFSRB is precluded from addressing issues of supervisors as they are not separate and distinct from issues before the Court.

6. The Respondent’s failure to provide the Applicant with information regarding the sexual assault allegations, including documents to prepare for the Court hearing.

28The sexual assault was the subject of Court proceedings, including in proceedings before the Ontario Court of Justice on January 10, 2020 in which the charges were stayed by the Court. The Applicant had the opportunity to raise her concerns with disclosure before the Court. As such, I find that the CFSRB does not have jurisdiction to address this issue as the issues related to the sexual assault allegations were decided by the Court and any potential remedies related to disclosure by the Respondent should have been raised at the Court.

7. The Respondent’s refusal to allow a supervised visit with the Child the day after he was apprehended.

29The Child was apprehended pursuant to sexual assault, exploitation, and interference allegations against the mother. The charges against the Applicant were stayed in December of 2019. Issues related to the conditions imposed on the Applicant because of her charges and the investigation needed to be raised before the Court as the Respondent is not responsible for imposing such conditions.

30As such, I find that the Applicant’s criminal issues, including the issue of conditions cannot be reviewed by the CFSRB as they were before the Court.

8. Concerns that the Applicant’s Child was coached regarding the sexual assault allegations.

31The issue of the Child’s father’s coaching was addressed in paragraph 62 of his Affidavit dated November 18, 2018 which was before the Court. The Child’s father indicated: “Paragraph 6 of Ms. T’s affidavit is pure conjecture on her part. I did not nor have I ever coached my son against his mother.”

32Given that the affidavit was presented in response to an affidavit submitted by the Applicant to the Ontario Court of Justice on November 13, 2018, I find that the issue of coaching was an issue that was placed before the Court. As such, the CFSRB does not have jurisdiction to review this aspect of the complaint.

9. Allegations that the Respondent’s staff informed the Child’s father that the Applicant had told them that the Child’s father planned to move with the Child.

33This allegation deals with custody and access issues which were determined based on several Court orders since 2015. For example, Justice Donald’s Temporary Order dated October 22, 2018 directs the Applicant and the Child’s father to advise the Society worker in advance of any change to their address and/or telephone number and provide the Society with their new contact information forthwith. The residence of the Child’s father was therefore an issue that was before the Court and was considered in the Court’s deliberations regarding access and custody.

10. Mismanagement of the Apprehension by the Respondent and the Applicant’s desire to have the Respondent take responsibility and fix the problems.

34The Respondent’s evidence and arguments regarding the apprehension of the Child, and its recommendations regarding custody and access were issues that were placed squarely before the Court on several occasions since 2015. While the Applicant may disagree with the Respondent’s positions on the apprehension and on custody and supervision, she had an opportunity to argue her position on these issues at various Court proceedings. For example, the recent February 6, 2020 Settlement Conference Offer to Settle and supporting documents clearly outlined the Respondent’s position and recommendations regarding custody and access. Form 17D: Settlement Conference Brief for Protection Application presented to the Court articulated the risks to the Child; the evidence the Respondent depended upon to base its recommendations; and suggested remedies for the Applicant. The issues which led to the apprehension of the Child (sexual abuse allegations) were heard by the Court and stayed.

35Based on a review of the documents submitted to various Court proceedings over the years, I find that the issues related to the Respondent’s handling of the apprehension and subsequent custody and access issues were not reviewable by the CFSRB as they are issues that have been placed before the Court.

11. Concerns with the removal of the Child from French Immersion

36The issue of where the Child goes to school have been dealt with by the Court in its findings that the Child will live with his father. In addition, the February 2020 Settlement Conference dealt with French Immersion issues and the Child’s education as evidenced by the various report cards included in the Settlement Conference Brief.

37I find that issues related to the education of the Child are issues that have been placed before the Court, most recently in February of 2020. As such, the CFSRB does not have jurisdiction to review these issues.

12. The Respondent’s refusal to respond to a service complaint submitted by the Applicant’s mother.

38As noted in The Law Section above, parents and children have a right to be heard when decisions that affect their interests are being made. In addition, section 120 (1) of the Act restricts the right to complain about a Children’s Aid Society to recipients of a service. In this case, the Applicant’s mother is not a parent of a child and has not sought or received a service. As someone who reported concerns with the safety of her grandchild, she is a referent.

39Given that this issue deals with the grandmother’s complaint; given that she is not a parent; and given that she did not receive a service from the Respondent, this aspect of the complaint falls outside the CFRSB’s jurisdiction in section 120 of the Act. As such, the CFSRB cannot review this issue.

13. Concerns that the Respondent will take 8 months to close the Applicant’s file.

40The timing of the file closure is dependent on the Applicant fulfilling the requirements set out by the Respondent. The requirements for the Respondent to close the Applicant’s file were presented to the Court at the recent February 6, 2020 Settlement Conference. The Form 17D: Settlement Conference Brief outlines 4 actions which the Applicant must take in order to resolve the Respondent’s concerns. While the Form does present a particular timeline for completing these tasks, I find the issue of what is required to close the file was before the Court. As such, the CFSRB does not have jurisdiction to address this issue.

SUMMARY

41Based on the evidence presented by the Respondent in the documents appended to its submissions, I find that 12 of the 13 issues raised by the Applicant were not separate and distinct from the substantive issues placed before the Court in various proceedings since 2015. As such, the CFSRB is precluded from reviewing these based on section 120(8) of the Act. The remaining issue (number 12) fell outside the CFSRB’s jurisdiction as it dealt with a complaint by the Applicant’s mother who did not seek or receive a service and therefore the issue fell outside of the provisions of section 120 of the Act.

ORDER

42The Applicant’s complaint is dismissed in its entirety.

CONFIDENTIALITY ORDER

43Pursuant to Rules 30.1 and 30.2 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.