LL v. York Region Children’s Aid Society, 2020 CFSRB 68

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LL Applicant

-and-

York Region Children’s Aid Society Respondent

DECISION

Adjudicator: Daniel McSweeney Date: July 10, 2020 Citation: 2020 CFSRB 68 Indexed As: LL v York Region Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

LL, Applicant Self-represented

York Region Children’s Aid Society, Respondent Alison Moonsie-Mohan, Director of Legal Services

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 not to have given the Applicant the opportunity to be heard when decisions affecting her interests were made; and the Respondent failed to provide the Applicant with reasons for decisions that affected her interests.

3The Applicant is the mother of a 14-year-old boy AG (the “Child”). The Application identified the following two issues:

1. The Respondent (Caseworker Richard Kendall and the Director of Legal Services) demonstrated bias against the Applicant through misrepresentation of facts and contradictory information provided to the Court.
2. The Respondent has failed to protect the Child from alleged abuse by his father, and has not taken the allegations of abuse reported by the Applicant seriously.

4The Respondent was directed by the CFSRB to address the Applicant’s allegations; provide a chronology of the Respondent’s interactions with the Applicant; provide copies of documents related to issues raised in the Application; comment on any facts, issues, or allegations on which the Respondent relies; and provide submissions on whether the CFSRB is barred by section 120(8)(a) from reviewing some or all of the Application. The Applicant was given 10 days after the Respondent’s submissions were provided to her to make her submissions on the issue of jurisdiction.

5In its submissions, the Respondent argued that all of the Applicant’s complaints and allegations have either been decided by the Court or are currently live issues before the Superior Court of Justice and the Divisional Court. As such, these issues are exluded from CFSRB review.

6Furthermore, the CFSRB does not have the jurisdiction to implement the relief sought by the Applicant, namely an investigation into the conduct of the family service worker and the Respondent’s counsel.

7In her submissions, the Applicant argued that family court judges rely upon and base their decisions on information received from CAS workers. She then indicated that the CFSRB has jurisdiction for the part of the case that has not yet been heard in Court which covers from January 17, 2020 until the date of the submissions (July 2, 2020).

8The remainder of the Applicant’s submissions and documents provided in support of the submissions dealt with the merits of her complaint; what the Applicant deemed were deficiencies or concerns in the Respondent’s submissions; and her concerns with the Child’s last months in care.

THE LAW

9Section 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

10The 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

11In analyzing the claim, I focused on whether the CFSRB had jurisdiction to review the complaint based on the exclusion of s. 120(8) (a).

12After reviewing all of the evidence before me, including the submissions on jurisdiction, I find that the Applicant’s allegations of bias and the proffering of false documents to the Court by the Respondent; and the Respondent’s failure to protect her son from alleged abuse were clearly before the Court. As such, the CFSRB does not have jurisdiction to address the complaint.

13This finding is supported by the Applicant’s indication in response to Question 10 in her Application (Is the concern you describe above currently before the Court?) that her concerns are currently before the Court. In addition, she provided documentation to support this fact.

Issue 1: The Respondent (Caseworker Richard Kendall and the Director of Legal Services) demonstrated bias against the Applicant through misrepresentation of information and contradictory information provided to the Court.

14The manner in which the Applicant framed Issue 1 clearly indicates that the issues were before the Court. The issue deals with bias, misrepresentation, and provision of contradictory information to the Court. I therefore find that, on its face, this issue was before the Court.

15In addition, a review of the documents provided by the parties revealed that the Applicant and her counsel had ample opportunity to present their concerns with and to challenge the Respondent’s opinions and statements to the Court. The Court has been provided with evidence regarding the alleged abuse over the years including as part of a December 2017 protection application; December 2017 proceedings which addressed access and child protection concerns; September 2018 order to bring the Child into care and Respondent request to have the Child’s father undergo a sex abuse risk assessment; and several placement orders.

16The Applicant provided evidence that indicated her concerns had been before the Court since 2015. For example, the affidavit of Colin Bennett presented to the Superior Court of Justice on May 22, 2015 outlined in detail allegations of alleged abuse of the children by the Child’s father, and the interaction between the Child and the Respondent e.g. paragraph 48.

17Victoria Dubychenko, protection worker for the Respondent, presented an affidavit dated December 7, 2017 to the Court which outlined the Applicant’s child protection concerns with the Child’s father, including the allegations of sexual abuse of the Child and the Respondent’s actions in relation to the allegations, including attending Court and launching a protection order.

18I considered the Applicant’s argument that her complaint addresses actions of the Respondent over the last 5 months. Again, I find that the alleged actions are before the Court. The Applicant provided evidence (Letter from Linda Rothstein dated May 7, 2020) confirming that the Respondent, the Child, the Child’s father, and Justice for Children and Youth are involved in matters which will be before the Court (appeal of order by Justice J. Jarvis). The Respondent wrote to the Superior Court of Justice indicating that a summary judgement motion in the protection hearing had been placed on hold due to COVID-19.

19The Applicant submitted a letter to the Court dated May 11, 2020 which addressed her concerns with the safety and wellbeing of the Child, including allegations of sexual abuse, physical altercations between the Child and his father; and the Respondent’s actions in relation to the Child, including communications between the Respondent worker and the Child and the Applicant. This letter clearly demonstrates that the Applicant’s concerns with the Respondent’s behaviour and its actions is clearly before the Court. As such, the CFSRB does not have jurisdiction to address these issues.

20Finally, the Respondent indicated that the issues child protection are scheduled to be before the Court on July 6, 2020.

21The documentary evidence provided by the Applicant and Respondent confirm that the Applicant’s concerns regarding the Respondent and its evidence have been before the Court. The Applicant was represented throughout the various proceedings and therefore had the opportunity to raise concerns with the Respondent’s alleged bias and its evidence with the Court.

22As such, I find the CFSRB does not have jurisdiction to review this aspect of the complaint as these issues have been clearly before the Court since 2015, and are currently before the Court (July 2020).

Issue 2: The Respondent has failed to protect the Child from alleged abuse, by his father and has not taken the allegations of abuse seriously.

23The Child’s allegations of inappropriate sexual contact with his father were placed before the Court on October 10, 2018 in a motion by the Respondent to place the Child in the Respondents care. In the Motion, the Respondent indicated that the allegations had been investigated and that they were inconclusive. The Respondent also considered the issues of the impact of the father yelling at the children; and the children’s exposure to adult conflict. Issues of therapeutic access and supervision were also addressed by the Respondent in its motion. Evidence of the Child’s mental and emotional health was also presented to the Court.

24Justice G.A. MacPherson specifically addressed the allegations of sexual abuse and declined to order the Child’s father to participate in a sexual behaviour assessment. In fact, the Respondent asked the Court to order the assessment to address the risk of sexual abuse.

25The Respondent also addressed the emotional and mental health of the Child in its motion regarding the Child’s placement with kin as per order by Justice R.T. Bennett on February 7, 2019; and in the Order by Justice H. A. McGee of September 19, 2019 placing the Child in the custody of his father. The Applicant and her counsel provided evidence and submissions to both proceedings.

26I note that that there are child protection proceedings scheduled to be before the Court on July 6, 2020. These proceedings are the most appropriate forum for the Applicant and/or her counsel to address any protection concerns with the Child.

27As such, I find that the CFSRB does not have jurisdiction to review the child protection concerns as they have been and are currently before the Court.

ORDER

28The Applicant’s complaint is dismissed in its entirety.

CONFIDENTIALITY ORDER

29Pursuant 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.