LS v. Family & Children’s Services of St. Thomas and Elgin, 2020 CFSRB 72

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LS

Applicant

-and-

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

Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney

Date: July 14, 2020

Citation: 2020 CFSRB 72

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

WRITTEN SUBMISSIONS

LS, Applicant

Self-represented

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

Dana Haklander, Legal 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) 5 of the Act: The Respondent is alleged to have failed to provide the Applicant with reasons for decisions that affected her interests.

3The Applicant is the grandmother of 4 children (the “Children”). The Application identified the following 6 issues:

1. The Applicant was concerned that her worries about the welfare of the Children have not been adequately considered by the Respondent.

2. The Respondent failed to provide the Applicant with an explanation for its decisions regarding placement of the Children.

3. The Respondent has failed to respond in a timely manner to the Applicant’s questions regarding what will happen to her 4 grandchildren.

4. The Applicant was not advised by the Representative that an emergency motion was being drafted to place the Children into the Applicant’s care.

5. The Applicant is concerned with the alleged treatment she received by the caseworker (Alexander Nimene) and would like him removed from the file.

6. The Applicant is concerned that she agreed to let the Children go with their mother as she was informed by Respondent staff that she could not take the Children with her out of province.

4In its response to the complaint, the Respondent indicated that issues related to the placement of the children, access and supervision are currently before the Court and therefore the CFSRB does not have jurisdiction to review the complaint based on Section 120(8)(a) of the Act. The initial Child Protection Application was resolved on September 26, 2019. It placed the Children in the care of their mother and indicated that the Applicant would ensure that the children attend all of their medical appointments, and that she would have reasonable access to the children at the discretion of the Respondent. This Order is set for review on September 24, 2020.

5The CFSRB directed the Applicant to make written submissions on the CFSRB’s jurisdiction to hear the Application. Parties were directed to review the Ontario Court of Appeal decision Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441.

6The Applicant submitted that her complaint should be heard despite the current Court action. The Applicant indicated that her complaint focused on the lack of information and inconsistencies in the information provided to her by Respondent staff that impaired her ability to make informed decisions about the Children. The Applicant was also concerned with the treatment she received by one particular worker and alleged that he was not competent to follow-up on the Applicant’s concerns about the Children and their mother. The Applicant was also concerned that the Society’s account of the circumstances under which the children left her residence in their Summary Reply was grossly misrepresented. The Applicant is not a party to the current Court action. Finally, the Applicant was concerned that she has not been provided with access to the Children pursuant to the current Court order.

THE LAW

7Section 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

8The 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

9In analyzing the claim, I focused on whether the issues identified by the Applicant in her complaint were separate and different from the substantive issues before the Court.

10After reviewing all of the evidence before me, including the submissions on jurisdiction, I find that Issues 1 and 2 will be before the Court in September 2020; however, the remaining 4 issues are separate and different from the substantive issues before the Court.

11The Respondent indicated that the child protection Order will be reviewed on September 24, 2020. The Respondent has indicated that it has listened to the Applicant’s child protection concerns; however, it does not have the authority to share the outcome of its findings to the Applicant. The Respondent will have an opportunity to raise any child protection concerns with the parents of the Children. It will also have the opportunity to provide a rationale for any of its child protection recommendations to the Court. I therefore find that protection issues related to the Children and the Respondent’s positions with respect to these issues will be before the Court in September 24, 2020. As such, the CFSRB does not have jurisdiction to address review Issues 1 and 2 in the complaint.

12The Applicant raised the issue of access to the Children in her submissions to the CFSRB. I note that this issue was not in her initial application. In addition, issues of access were decided and will be decided at Court. As such, the CFSRB will not address this issue.

13I concur with the Applicant that the remaining issues in the complaint do not deal with issues that are or were before the Court. The Applicant’s concerns focus primarily on how Respondent staff treated her, and what information was provided to her to guide her in decision-making in regard to the Children. These issues are separate and distinct from the child protection issues that will be before the Court.

14Upon review of the documents, I believe that there has been a lack of clarity related to the Respondent’s involvement with the Applicant. The Respondent has argued that the Applicant was only mentioned in the original Order in relation to ensuring the children attend medical appointments, and in relation to reasonable access. Despite this, the Respondent’s Response highlights examples of interaction and interventions between the Applicant and the Respondent that goes beyond the provisions of the Order. For example, the Applicants were assigned a Kinship Worker who provided support to the Applicant. The Applicant was involved in an agreement on where the Children would live. The Applicant was involved in a mediation process. Respondent staff spoke with the Applicant about a potential emergency placement motion to the Court. Finally, the Respondent provided the Applicant a letter in relation to the care of the Children that indicated: “The Society is supportive of this placement and has encouraged them to inform you that they are currently considered the child’s [sic] guardian”.

15I find that this inconsistent approach has raised questions in the Applicant’s mind about her role with the Respondent as well as her expectations of Respondent staff. These questions and issues need to be further explored through the CFSRB’s mediation or hearing process.

ORDER

16For the reasons highlighted above, Issues 1 and 2 of the Applicant’s complaint are dismissed as they are issues that are before the Court. The CFSRB has jurisdiction to review Issues 3 – 6.

NEXT STEPS

17A Case Processing Officer will be in contact with the parties to plan for a pre-hearing teleconference to address Issues 3 – 6.

CONFIDENTIALITY ORDER

18Pursuant to Rules 9.3 and 9.4 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.