TC v. Children’s Aid Society of Ottawa, 2020 CFSRB 86

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

TC Applicant

-and-

Children’s Aid Society of Ottawa Respondent

DECISION

Adjudicator: Daniel McSweeney Date: September 16, 2020 Citation: 2020 CFSRB 86 Indexed As: TC v Children’s Aid Society of Ottawa (CYFSA s.120)

WRITTEN SUBMISSIONS

TC, Applicant Self-Represented

Children’s Aid Society of Ottawa, Respondent Brian Fisher, 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 JS (the “Child”). The Application outlined the following issues:

1. Concerns that the Respondent has failed to hear the Applicant’s and the Child’s concerns about alleged abuse and child protection risks of the Child’s father;

2. Concerns regarding the methods used by Respondent staff in their investigation, protocols and procedures;

3. Concerns that Respondent staff did not consider the impact of the alleged abuse on the Child;

4. Concerns with the handling of the Applicant’s complaints by Respondent management such as failure to return calls or communication from the Manager;

5. Concerns with inaccuracies in the Respondent’s Records concerning the Applicant which influenced the Respondent’s child protection decisions and recommendations to the Court;

6. Concerns with the collection, use, and disclosure of inaccurate information in the Applicant’s record; and

7. Concerns with impact of COVID on the Applicant’s access to justice.

4In its Summary Reply, the Respondent indicated that the CFSRB did not have jurisdiction to hear the matter as it is presently before the Court, and that family litigation will continue to be before the Court. The Respondent requested that the Application be dismissed pursuant to section 120(8) of the Act.

5In a Case Management Direction (CMD) dated July 31, 2020, the Applicant was directed by the CFSRB to make written submissions on the CFSRB’s jurisdiction to hear the complaint. The Applicant was asked to refer to the Ontario Court of Appeal decision in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441. The Applicant asked for and was provided an extension until September 14, 2020 to provide Submissions.

6The Applicant provided an e-mail on August 13, 2020 which reiterated the concerns outlined in her Application. The Applicant argued that her service-related concerns were not before the Court. The Applicant then provided submissions relating to jurisdiction along with an article entitled The Alienated Child. I assigned no weight to the article as it was irrelevant to my analysis of jurisdiction.

7The Applicant’s submissions addressed issues such as statutory interpretation; standard of review; the paramount purpose of the Act; best interests of the child; services provided to children and families including to First Nations, Inuit and Metis children and families; disclosure; and service provider roles and responsibilities. The Applicant argued that, in determining jurisdiction based on the provisions of Section 120(8), the CFSRB must reflect on the preamble of the Act; and the intention of Parliament in relation to the Act. The remainder of the submissions focus on the merits of her Application and the actions of Respondent staff.

8The Applicant also raised issues of systemic and structural discrimination; a pattern of micro-aggressions and direct aggressions on the part of the Respondent based on race, ancestry, place of origin, ethnic origin, family diversity, disability, and/or creed. The Applicant also argued that the alleged individual and institutional discrimination she and the Child experienced contributed to a breach of her and the Child’s rights. She argued that the CFSRB has the jurisdiction to review issues of systemic racism and discrimination on the part of the Respondent which is not an issue that was before the Court.

9The Applicant argued that it is unlikely that the concerns outlined in the Application would be raised before the Court as the Court was addressing an Urgent Motion. Children’s Aid Society of Waterloo v. DD ONCA 441 indicated that section 120(8) applies to issues: “decided by the court or before the court”. She argued that, If the legislature had intended that all matters that could be raised before the court were excludable, it would have said so in clear language. It did not.

THE LAW

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).

ANALYSIS

12In analyzing the claim, I focused on whether the issues/concerns identified in the Application had been or are currently before the Court. I also focused on whether the CFSRB had jurisdiction to address issues related to the collection, use, and disclosure of information and the accuracies of Children’s Aid Society records.

13The Respondent disclosed an Interim Order by Madam Justice MacKinnon of the Superior Court of Justice dated June 29, 2020. This decision addressed the following substantive issues:

• The best interests of the Child;

• Access and custody issues, including allegations of parental alienation;

• Reported allegations of abuse by the Father pursuant to an incident on October 23, 2019; case conference with CAS scheduled for April 22, 2020; CAS conclusions regarding protection concerns with the Father;

• Allegations of risks that the Child will face at the hands of his father;

• Evidentiary objections by the mother related to documents submitted to the Court, including CAS records and records of the investigation;

• Family conflict leading to mental health and behavioural concerns with the Child;

• The Applicant’s mental health and suicidal feelings;

• The Child’s views and wishes related to his father; alleged coaching by the Applicant in regard to the Child;

• Parties’ perceptions on their parenting;

• The Child’s father’s alleged disregard of COVID-19 health recommendations and the impact of COVID on the Court’s rulings;

• The Applicant’s Indigenous heritage and the interpretation of some of the evidence based on this heritage e.g. paragraph 51; paragraph 162; and

• The existence of many factual disputes before the Court; including issues of credibility, reliability, and evidentiary issues affecting the Court’s conclusions.

14The matter was set to return before the Courts for a review within 6 weeks. The Respondent also indicated that these matters form part of ongoing contentious family litigation which may be before the Courts for some time before a final order can be issues.

15I will address the broad Canadian Charter of Rights and Freedoms and systemic issues raised by the Applicant.

16The Applicant also raised Charter issues. Such issues require notice to the Federal Attorney General and Attorneys General from each province and territory. The Applicant has failed to do this in this case and is therefore precluded from making these arguments before the CFSRB.

17In her submissions, the Applicant raised issues of systemic and structural discrimination. These issues were not included in the original Application received on July 10, 2020 and therefore I find that they fall outside the scope of this review. I considered the fact that the Applicant indicated that she was filing the complaint for a number of reasons which include, but are not limited to: (list of issues). Item 5 indicated: “Any other issues discussed herein that are not noted in this list”. The Application form indicates that an applicant must explain the complaint in detail and be specific as possible. The directions on the Application form preclude the Applicant’s complaint from becoming an evolving recitation of concerns without end. I find that the concerns to be addressed in a review are the concerns that are listed in the Application. Limiting concerns to those in the application reflects the principles of natural justice and procedural fairness as it affords the Respondent with adequate notice and the opportunity to respond to the case against it.

18Based on a review of the Court Order, I find that issues 1 – 4 are exempt from CFSRB review as they are issues that are before the Court or have been decided by the Court. Issues related to the Applicant’s child welfare concerns and the Respondent’s response to the concerns can and have been raised by the Court.

19The Application speaks about alleged breaches of the Applicant’s and her son’s rights. With respect to a service complaint under section 120, the CFSRB only has jurisdiction to make findings related to whether a recipient of service was denied 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. In addition, section 120 allows a review of whether an Applicant was provided with reasons for decisions that affected her interests. With respect to a complaint, the CFSRB cannot address a child welfare agency’s decision-making or the soundness of a child welfare decision.

20The Applicant’s child welfare concerns; the Respondent’s investigation and actions; the reasons for the Respondent’s decisions; the Respondent’s records; and the impact on the Child were carefully considered by the Court.

21I find that the Applicant was provided with an opportunity to outline the child protection concerns associated with the Child’s father at the June 4, 2020 Court Proceedings.

22The Court proceedings also addressed the evidence provided by the Respondent in support of its actions and its child protection decisions.

23The Court considered the impact of the parental conflict on the Child’s mental health and wellbeing and his best interests, including on where he would live temporarily, and on the conditions of the Parenting Order.

24The Court Order also discussed interactions between the Applicant, the Child and the Respondent.

25Furthermore, I note that in paragraph 8 of the Interim Decision by the Court, the Justice indicated that: “findings of credibility and reliability, evidence from independent sources, and documents, have been very important to the conclusions reached”. In addition, the Court concluded in paragraph 134: “the respondent’s reliability is also impacted to the extent that I have found her to dramatize or overstate events.” In paragraph 129, the Court found the Applicant was not credible in her denial of her mental health diagnosis. As issues related to the Applicant’s interpretations of the Respondent’s actions is highly subjective; and given that the Court identified credibility and reliability concerns with the Applicant as a witness, I find that the Court is in the best position to address these issues as it has the benefit of the complete record; and has had an opportunity to assess the Applicant’s credibility.

26Finally, I note that the Applicant’s final submissions did not address the Respondent’s alleged failure to communicate with her and return calls and how this issue was an issue that was not before the Court or will be before the Court.

27Given the complexity of the case before the Court, I find that the Court is the best place for the Applicant to put forward any of her concerns regarding the Respondent’s actions.

28With regard to issues 5 and 6, as of January 1, 2020, the CFSRB no longer has jurisdiction to address issues related to the collection, use and disclosure of records. In addition, the CFSRB does not have jurisdiction over in accuracies in records. Part X of the Act provides jurisdiction to the Office of the Information and Privacy Commission.

29I note that issues related to COVID were addressed in the Court Order and any continued concerns with this issue can be raised at upcoming Court proceedings.

SUMMARY

30Based on a review of the Court Order submitted by the Respondent, and the fact that proceedings are ongoing which will provide the Applicant with an opportunity to raise her concerns, I find that issues/concerns 1-4 raised by the Applicant have been placed squarely before the Court. I note that the Applicant is a lawyer and was represented by counsel in the Court proceeding and therefore had an opportunity to present her child welfare concerns and concerns with her interaction with the Respondent before the Court. In addition, given the credibility and reliability concerns identified by the Court, I find that the Court is in the best position to address the Applicant’s concerns as it has the benefit of the entire record and it has the benefit of having assessed the Applicant’s credibility and reliability as a witness.

31I also find that issues of COVID were addressed by the Court and can be raised at future proceedings.

32As such, the CFSRB does not have jurisdiction to review issues 1-4 and 7 as per section 120(8) of the Act.

33Finally, the CFSRB does not have jurisdiction to address issues of the collection, use, and disclosure of personal information; and in accuracies in records as per Part X of the Act. As such, the CFSRB is precluded from reviewing issues 5 and 6.

ORDER

34The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

35Pursuant 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.