SF v. Peel Children’s Aid Society, 2020 CFSRB 84

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SF Applicant

-and-

Peel Children’s Aid Society Respondent

DECISION

Adjudicator: Daniel McSweeney Date: September 11, 2020 Citation: 2020 CFSRB 84 Indexed As: SF v Peel Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

SF, Applicant Self-Represented

Peel Children’s Aid Society, Respondent Amanda Rozario, 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 Applicant was not given the opportunity to be heard and represented when decisions affecting her interests were made, or a chance to be heard when she raised concerns about the services she is receiving; the Respondent is alleged to have failed to provide the Applicant with reasons for decisions that affected her interests.

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

1. Concerns that the Respondent has failed to provide her custody of the Child;
2. Concerns regarding supervised access including the need for meetings to be by Facetime; and the fact that the Applicant’s mother determines when the Applicant can see the Child; and the impact that the lack of access has had on the bond between the Applicant and the Child;
3. Concerns that the Respondent’s staff have not heard the Applicant’s arguments and evidence (from the doctor and psychologist) around her ability to parent the Child;
4. Concerns that Respondent staff has a personal problem with the Applicant which is causing the Respondent to lodge a case against the Applicant;
5. Concerns that the Respondent stopped the Applicant from breastfeeding the Child;
6. Concerns that the Respondent has not considered the Applicant’s fears that the Child will be placed in foster care if she complains to the Respondent that the Child is being abused by his maternal grandmother; and
7. Concerns that the Respondent’s staff is favouring her mother despite the fact that the Applicant was removed from her mother’s care when she was younger.

4In its Summary Reply, the Respondent requested that the Application be dismissed as the concerns that the Applicant identified in her complaint are currently before the Court. Specifically, the Court has been apprised of the following: reasons/rationale for apprehension of the Child, the Respondent’s mental health concerns for the Applicant; evidence from the Applicant’s psychiatrist indicating that the Applicant is able to care of the child; the Respondent’s reasoning for not placing weight on the psychiatrist’s opinion; as well as an access order that places access at the discretion of the Respondent.

5In a Case Management Direction (CMD) dated June 26, 2020, the parties were directed by the CFSRB to make written submissions on the CFSRB’s jurisdiction to hear the complaint. The parties were asked to refer to the Ontario Court of Appeal decision in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441.

6On June 29, 2020, the Applicant provided submissions on why the Applicant felt that the complaint should proceed. The submissions did not address the issue of jurisdiction and simply recounted the concerns outlined in the Application.

7In its submissions, the Respondent argued that the issues raised by the Applicant were or are wholly before the Court as part of the ongoing child protection proceedings. The Applicant’s concerns deal with child protection, custody, and access issues which are within the Court’s mandate. As such, the CFSRB is precluded from reviewing the complaint as per section 120(8) of the Act.

THE LAW

8Section 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

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).

ANALYSIS

10In analyzing the claim, I focused on whether the issues/concerns identified in the Application had been or are currently before the Court.

11The Respondent disclosed many documents (applications, affidavits, notices of motion, supporting documents) which were considered by the Court in various proceedings since the Child was apprehended in January of 2020.

12The Child Protection Application dated January 22, 2020 accompanied by the Notice of Motion and affidavit of Nateshia Williams (Child Protection Worker) addressed the following issues: the reasons for apprehending the child; custody and supervised access issues; the historical and ongoing family conflict; the Applicant’s mental health and the impact of this on her ability to parent; the need for community supports for the Applicant; the Respondent’s opinion on the psychiatric evidence; and the Child’s grandmother’s child protection history. The same issues were addressed in the Notice of Motion dated January 27, 2020 and the affidavit of Natasha Williams, Child Protection Worker. Ms. Williams’ affidavit also provided more detail on the rationale for the Respondent’s investigation and apprehension of the Child and its temporary custody and access recommendations to the Court. It commented on the Child’s development and health while in the care of his grandmother. It addressed the Applicant’s belief that the Respondent was forcing her to maintain relations with her mother. It commented on the Applicant’s desire to breastfeed the Child as well as the Applicant’s concerns regarding alleged abuse of the Child by his grandmother.

13The initial Court Order dated January 29, 2020 addressed the appropriateness of the placement of the Child with his maternal grandmother; supervised access; the Applicant’s mental health; family conflict, and the grandmother’s use of physical discipline.

14The Applicant filed two affidavits (February 3 and 6, 2020); and her Answer to the Plan of Care on February 4, 2020. These documents addressed the following issues: the Applicant’s beliefs regarding the apprehension of the Child; the difficult relationship between the Applicant and her mother; the allegations of abuse and past CAS involvement of the Applicant’s mother; the Applicant’s displeasure of having her mother care for the Child; the Applicant’s concerns with the Respondent’s dependence on information about the Applicant provided by her mother; the Applicant’s consent to place the Child with her mother to avoid his being placed in foster care; the Applicant’s views on the care the Child received from her mother including potential abuse; reports from the Applicant’s psychiatrist regarding the Applicant’s mental health and ability to parent the Child; the Respondent’s opinions of the psychiatrist’s evidence; the Applicant’s desire to breastfeed the Child; the Applicant’s concerns with access and access conditions; and the Applicant’s access to community based parenting and mental health support services.

15The Applicant also provided the Court with a report from her psychiatrist which commented on the Applicant’s diagnosis, treatment and prognosis, as well as the psychiatrist’s opinions regarding the Applicant’s ability to parent the Child.

16The Court ordered that the Child be placed in the temporary custody of his maternal grandmother on February 12, 2020. At that time the Court ordered that access to the Child was at the discretion of the Respondent. The Respondent clearly indicated in the documents before the Court that the Applicant’s access to the Child would be supervised and at a time and place that was approved by Respondent staff in advance.

17The June 22, 2020 Plan of Care raised many of the same issues as identified above and also addressed access considerations related to COVID-19.

18Finally, I note that issues of access and custody remain before the Court as the matter has been adjourned for a settlement conference.

19Based on a review of the Court documents submitted by the Respondent, I find that issues/concerns 1-6 raised by the Applicant have been placed squarely before the Court on multiple occasions since January of 2020. The Applicant was represented by counsel throughout various proceedings and therefore had an opportunity to present her concerns to the Court related to the health and safety of the Child; the Respondent’s child protection, access, and custody positions; and her interaction with the Respondent. The Applicant’s concerns/issues were not separate and different from the substantive issues before the Court. As such, the CFSRB does not have jurisdiction to review issues/concerns 1-6 based on the provisions of section 120(8) of the Act.

20I reflected on the Applicant’s concern that Respondent staff was favouring her mother and/or taking her position over the Applicant’s (issue/concern 7). This may be the conclusion that the Applicant has drawn; however, I note that the Court documents provided the rationale for placing the Child with kin and the fact that the Applicant’s family are her only source of support. As such, the Respondent’s rationale for its decisions to place the Child with his grandmother were considered by the Court.

SUMMARY

21I find that issues/concerns 1-7 are issues that were before the Court or are currently before Court. As such, the CFSRB does not have jurisdiction to review these issues as per section 120(8) of the Act.

ORDER

22The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

23Pursuant 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.