KD v. Windsor-Essex Children’s Aid Society, 2020 CFSRB 87

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

KD Applicant

-and-

Windsor-Essex Children’s Aid Society Respondent

DECISION

Adjudicator: Daniel McSweeney Date: September 18, 2020 Citation: 2020 CFSRB 87 Indexed As: KD v Windsor-Essex Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

KD, Applicant Self-Represented

Windsor-Essex Children’s Aid Society, Respondent Loran Dutka, Representative

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 DE (the "Child"). The Application outlined the following issues:

1. Concerns that the Respondent apprehended the Child without reason and based on false information;
2. Concerns that the Respondent did not provide an explanation for the apprehension of the Child;
3. Concerns that the Applicant was not provided access to her child for a week and 3 days following the Child’s placement with a relative;
4. Concerns that the Respondent has failed to return the Child to the Applicant’s care despite her cooperation in completing the Plan of Care;
5. Concerns regarding the Respondent’s requirements regarding access e.g. not allowing photos or video or bringing gifts to the Child; and
6. Concerns regarding the Applicant’s views of Court ordered access.

4In its Summary Reply, the Respondent indicated that matters regarding extended society care of the Child, and the Applicant’s access were before the Courts. At present, the Respondent is engaged in Court proceedings related to an openness between the Applicant and the Child.

5The Summary Reply also addressed concerns in a previous complaint to the Respondent regarding one of its workers. These concerns were not included in the present Application and therefore I did not consider these.

6The Respondent indicated that the Child was apprehended because of concerns with the Applicant’s mental health; exposure of the child to domestic violence; and concerns with the Applicant’s substance misuse. The Applicant did not attend access on August 17 and 20, 2016, after the child came into care on August 12, 2016. She requested access on August 23 and was provided access on August 25 and 26, 2016. The Applicant failed to complete the Fresh Start Program which relates to domestic violence. The Applicant continued to associate with her former partner despite breaching a recognizance order not to associate with him.

7The Respondent indicated that the Applicant was limited in what she could bring and do during visits and was provided explanations for the rationale. For example, the Applicant was showing videos of the Child’s father and showing pictures contrary to the recommendations of treatment providers. The Applicant also brought sweet treats and junk food which was not recommended.

8In an e-mail dated August 27, 2020, the Respondent was directed to make written submissions on the CFSRB’s jurisdiction to hear the complaint pursuant to section 120(8) of the Act. The Applicant was asked to make written submissions on the question no later than 10 days after receipt of the Respondent’s submissions.

9The Applicant provided comments in three e-mails (September 3, 6, and 9, 2020). The e-mails comment on the Respondent’s submissions. The Applicant did not provide any further written submissions. As such, the CFSRB considered the 3 emails the Applicant’s submissions. The e-mails indicated the following:

• The Respondent continues to lie in its response and the Applicant can prove this allegation e.g. regarding the Applicant’s alleged drug use; allegations regarding the Applicant’s mental health; allegations that the Child observed domestic violence; unsafe housing; the Applicant’s ability to care for the Child; allegations that the Applicant was concerned with the child staying with her sister; and
• The Applicant cooperated with the Society.

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.

13The Respondent disclosed 3 Court Orders and 2 Reasons for Judgement.

14In Reasons dated July 30, 2019, Justice L.S. Ross addressed the following issues:

• Supervised access by the Applicant, and access between the Child and her siblings;
• Rationale and reasons for apprehending the Child;
• Permanency planning and placement of the child in extended society care;
• Historical and current evidence regarding the Applicant’s circumstances;
• The Applicant’s mental, emotional, and social functioning and health;
• The Applicant’s parenting capacity e.g. Parenting Capacity assessment;
• The Applicant’s history of domestic violence and insight into this issue;
• The Applicant’s participation in parenting programs and the impact of these programs on the Applicant’s parenting; and
• Best interests of the child.

15Justice Ross noted that many of the findings presented by the Respondent were unchallenged by the Applicant.

16In Reasons dated November 6, 2019, Justice Douglas Phillips indicated that the following issues had been addressed by the Court:

• History of the Applicant’s child protection involvement, including the reasons leading to the apprehension of the Child; the placement of the Child in extended society care; the Plan of Care; access recommendations; and the Applicant’s current circumstances;
• The Applicant’s involvement in parenting and domestic violence programs and any learnings or behavioural changes associated with the programs;
• Expert evidence regarding the Applicant’s mental and emotional health; the Applicant’s intellectual functioning; the Applicant’s parenting skills; the Applicant’s history of involvement in domestic violence; and her use of substances;
• Access issues, including supervised access at the discretion of the Respondent; and
• The Applicant’s ongoing contact with the Child’s father in breach of Court requirements.

17At p. 10, the Order cites the Oral Decision of Justice Ross who stated: "The protection finding is unopposed by the mother and she does not have to give any reasons for that and in fact, that would it seem to the court, to be a wise litigation move on the mother’s part to not focus on facts that she cannot rebut and cannot change, most particularly the Society’s reliance on the parenting capacity assessment."

18Justice Phillips noted that the Applicant acted on her own behalf. The Applicant had the opportunity to provide evidence and oral testimony as well as to question the many Respondent witnesses, including Ms. Rotulo who she accused of providing false evidence. The Applicant had the opportunity to testify about: allegations that Ms. Rotulo lied in her testimony as well as in documents provided to the Court; the removal of the Child; the Applicant’s relationship with the father of the Child; access decisions; her mental health and need for services; the Applicant’s history with the Respondent.

19The Respondent also provided the CFSRB with 3 Court Orders which address the frequency of and supervision of access; the Child’s contact with her father; and the placement of the Child in extended society care.

20Based on a review of the Court Orders and Decisions, I find that all the issues identified by the Applicant are exempt from CFSRB review as they are issues that have been before the Court.

21The Court records indicate that the Applicant did not challenge the decisions to apprehend the child and to place her in extended society care. The Applicant had the opportunity to provide any evidence she wanted, including oral testimony, at Court proceedings. She also had the opportunity to cross-examine and question Respondent witnesses regarding their evidence, their behaviour in terms of access and requirements of supervised access; child protection findings, and the Respondent’s recommendation that the Child be placed in extended society care.

22It is clear to me that the current Application is an attempt to relitigate issues which were clearly considered by Justices Ross and Phillips and which have been decided in their judgements and clearly communicated in reasons presented to the Applicant. It would be an abuse of process for the CFSRB to move forward with a review of this complaint as the issues presented in the complaint have been decided by the Ontario Court of Justice. Furthermore, the CFSRB is precluded from reviewing issues that have been or are currently before the Court pursuant to section 120(8) of the Act.

ORDER

23The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

24Pursuant 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.