JDC v. Children’s Aid Society of Hamilton, 2020 CFSRB 70

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JDC Applicant

-and-

Children’s Aid Society of Hamilton Respondent

DECISION

Adjudicator: Daniel McSweeney Date: July 10, 2020 Citation: 2020 CFSRB 70 Indexed As: JDC v Children’s Aid Society of Hamilton (CYFSA s.120)

WRITTEN SUBMISSIONS

JDC, Applicant Self-represented

Children’s Aid Society of Hamilton, Respondent David Sider, Chief 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 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 5-year-old boy YS (the “Child”). The Application identified the following 7 issues:

1. The Respondent has failed to provide information and reasons for their actions related to her son’s alleged sexual abuse e.g. medical exam without the Applicant’s presence; not listening to the Applicant’s, taking the child into care.
2. The Respondent refused to return the Child based on a temporary care plan.
3. The Respondent presented concerns regarding the Applicant’s mental health to the Court.
4. Respondent staff are engaged in reprisals against the Applicant as a result of her advocacy efforts.
5. The Applicant is concerned that the Respondent is impeding access to the Child.
6. The Applicant is concerned with the inappropriate behaviour of the foster mother (ending telephone calls; ripping photos in front of the Child).
7. The Applicant is concerned that the Respondent has not followed up on threats to cut out the Child’s tongue made by the Child’s old teacher.

4The CFSRB directed the Respondent 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.

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

6With respect to Applicant’s report that a former teacher had threatened to cut out the Child’s tongue, the Respondent argued that the Applicant reported the concerns to the Respondent on June 15, 2020, the Application was received by the CFSRB the next day on June 16, 2020. The Respondent argued that the Applicant’s complaint regarding failure to follow-up was premature.

7The Respondent argued that the issues related to the foster mother are issues that relate to the quality of services the child receives which is within the jurisdiction of the Court and therefore excluded from the CFSRB’s review.

8The Applicant submitted a response to the Respondent’s submissions. Her submissions focused on challenging the Respondent’s statements regarding her mental health; her coaching the Child; her concerns with the Child’s mental health while in care; her concerns with access decisions, among other issues. The Applicant failed to comment on the issue of jurisdiction.

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 2 issues: 1) whether the CFSRB had jurisdiction to review the complaint based on the exclusion of issues that are or were before the Court in section 120(8) (a) including concerns with the behaviour of the foster mother; 2) Were the Applicant’s concerns regarding the alleged threats by a former teacher to cut the Child’s tongue out premature?

12After reviewing all of the evidence before me, including the submissions on jurisdiction, I find that the Applicant’s issues 1 – 5 are issues that were clearly before the Court. As such, the CFSRB does not have jurisdiction to address these issues complaint.

13I find the issue related to the foster mother’s behaviour is also before the Court. As such, the CFSRB does not have jurisdiction to review this issue. In addition, the Applicant’s submissions indicate that she does not have concerns with the foster mother’s behaviour.

14Finally, I find that the Applicant is premature in alleging that the Respondent has failed to investigate and follow-up on her allegations that a teacher had threatened to cut out the Child’s tongue, and to provide her with reasons for its decisions on this issue.

Issues 1 – 6

15Issues related to care, custody, and access to the Child were discussed in Court when the Child was ordered into care on October 9, 2019. The Child was placed in the temporary care of the Respondent with supervised access at the discretion of the Respondent.

16In her response to the Respondent’s submissions, the Applicant indicated that the issue of frequency of access was addressed by Justice Pazaratz at a Settlement Conference in May of 2020. Concerns with the implementation of the plan should be raised with the Court. Issues of care, custody and access will be discussed further at the Settlement Conference scheduled for July 15, 2020. The Briefs provided to the Court by the Respondent and Applicant cover these issues.

17For example, the July 2020 Brief addresses the mother’s request to have the Child returned to her care, as well as liberal and unsupervised access. It also addresses the Child’s mental health and care while in foster care.

18The Respondent’s July 2020 Brief addresses the Society’s concerns with the mother’s history of mental health concerns, present mental health concerns, and the risk of harm to the child. It addresses the alleged concerns by the mother that the Child has experienced sexual abuse.

19The Applicant indicated in her supporting documents that the Child was interviewed by police without her present. She makes no allegations of the Child being interviewed by the Respondent without her present, and therefore this issue falls outside section 120 of the Act.

20The Respondent’s July 2020 Brief addresses issues of supervised access and barriers to access associated with COVID-19. It addresses Facetime and telephone access to the Child. The Brief addresses the foster mother’s role in facilitating additional calls; concerns related to the mother’s behaviour during calls; and the frequency of contact. In addition, the Brief indicates that the Respondent has canvassed the possibility of having a third party supervise or facilitate visits.

21The Applicant’s Filing to the Superior Court of Justice addresses issues related to the Child while he is in care (behaviour, emotional and mental well-being). If the Applicant has concerns with the foster mother and the care her son receives, she is free to raise these issues before the Court.

22Furthermore, in paragraph 24 of her response to the Respondent’s submissions the Applicant indicated: “For the record, I have no complaints against “R”, the foster mother. I know she must have a lot on her plate, even though I would appreciate daily communication as is recommended in Dr. Klein’s report on him.” In paragraph 26, the Applicant indicated that the access calls were not ended by the foster mother. Given the Applicant’s own statement, I find that the issues related to the foster mother are no longer issues to be considered by the CFSRB.

23The Applicant is also free to raise issues of alleged retribution by Respondent staff with the Court in the context of discussions related to access and custody decisions at the Settlement Conference scheduled for July 15, 2020.

Issue 7: Concerns that the Respondent has not followed up on threats to cut out the Child’s tongue made by the Child’s old teacher.

24After having reviewed the evidence, I concur with the Respondent that the Applicant is premature in asking the CFSRB to review this aspect of her complaint. The Applicant has not provided the Respondent’s staff with sufficient time to investigate the allegations, to make a verification decision, and to communicate the decision and its reasons to the Applicant as she lodged her CFSRB complaint one day after reporting the concerns to the Respondent. The Applicant is free to raise this issue with the CFSRB in future should she feel that her concerns are not heard and/or should she feel that she was not provided with adequate reasons for the Respondent’s decisions in relation to this aspect of her complaint.

25In summary, I find that issues related to custody, access, child protection, the health and well-being of the Child have been before the Court and are currently before the Court. As such, I find that the CFSRB does not have jurisdiction to review Issues 1 – 5. In her submissions, the Applicant has indicated that she is no longer concerned with the behaviour of the foster mother. In addition, issues of the care of the child while in the Respondent’s custody are issues before the Court. As such, I find the CFSRB does not have jurisdiction to address this issue.

26Finally, I find that the Applicant’s concerns with the alleged threat to cut out the Child’s tongue are premature at this time. The Applicant can raise this issue with the CFSRB once the Respondent has had adequate time to investigate and make a finding in relation to the allegations.

ORDER

27For the reasons highlighted above, the Applicant’s complaint is dismissed in its entirety.

CONFIDENTIALITY ORDER

28Pursuant 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.