AH v. Kawartha-Haliburton Children’s Aid Society, 2020 CFSRB 92

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AH Applicant

-and-

Kawartha-Haliburton Children’s Aid Society Respondent

DECISION

Adjudicator: Daniel McSweeney Date: October 21, 2020 Citation: 2020 CFSRB 92 Indexed As: AH v Kawartha-Haliburton Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

AH, Applicant Self-Represented

Kawartha-Haliburton Children’s Aid Society, Respondent Kristy Davidson, 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 of the Act: The Applicant was not given the opportunity to be heard and represented when decisions affecting her interests were made.

3The Applicant is the mother of SH, VH and GH (the “Children”). The Application outlined the following issues/concerns:

1. The Respondent did not hear and follow-up on the Applicant’s concerns regarding SH’s increasingly violent behaviour at school and home.
2. The Applicant was concerned that Respondent staff did not assist the Applicant in removing her abusive partner from the home.
3. The Applicant’s concerns regarding the impact of play therapy on SH was not considered by Respondent staff.
4. The Applicant was concerned that Respondent staff threatened to take the Applicant to court if she stopped play therapy for SH.
5. The Applicant was concerned that Respondent staff had accused her of neglecting SH’s medical care in relation to an ear infection.
6. The Applicant was concerned that Respondent staff apprehended SH because the Applicant had not administered some medication, and disregarded the communication between the Applicant and SH’s doctor relating to the medication.
7. The Applicant was concerned with access to SH after her apprehension.
8. Respondent staff did not hear the Applicant’s concerns regarding VH being placed with her father.
9. The Respondent was concerned that the apprehension of her 2 daughters and possible apprehension of her son were the result of a personal issue with Respondent staff.
10. The Applicant was concerned that Respondent staff had told her children that they did not have to listen to the Applicant.

4In its Summary Reply, the Respondent indicated that the issues identified in the Application are issues that are currently before the Court and therefore the CFSRB is barred from reviewing the Application pursuant to section 120(8) of the Act.

5The Respondent indicated that the Applicant’s concerns were heard by Respondent staff and that she was provided reasons for Respondent decisions throughout the process. In particular, the Respondent denied that any of its staff informed SH not to listen to her mother. Respondent staff supported the Applicant in her efforts to leave her partner. Dr. White has never confirmed to the Respondent that he directed the Applicant to cease play therapy. The Applicant refused to get SH’s prescription for her ear infection filled and to follow-up in a timely manner with a doctor. The Applicant modified the dosage of SH’s medication against medical recommendations. SH was removed out of concern and risks associated with inadequate care and parenting practices, supervision and lack of appropriate medical and mental health care. An alternate caregiver was charged with sexual interference and sexual assault in relation to VH despite the Applicant’s belief that the child was coached by her father. Finally, Respondent staff has attempted to provide supports to the Applicant and only apprehended the children when they were placed at immediate risk.

6In a Case Management Direction dated September 17, 2020, the parties were directed to make written submissions on the CFSRB’s jurisdiction to hear the complaint pursuant to section 120(8) of the Act. Parties were asked to refer to the Ontario Court of Appeal decision of Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441.

7The Applicant provided submissions in the form of a chronology of her interactions with the Respondent. The Applicant cited Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441: “They had jurisdiction to hear the complaint and did so”. The Applicant then indicated that the Board has the jurisdiction to review a matter that is before the Court.

8In her submissions, the Applicant made reference to a previous complaint to the CFSRB (CA19-0244) received by the Board on November 25, 2019. This complaint identified the following concerns: concerns with 2 workers (Jenny Hill and Sandra Woods); Respondent staff lack of responsiveness to the Applicant’s concerns regarding SH’s behaviour at home and school; SH being told that she did not have to accept the authority of her mother; SH’s refusal to take her medication and the Applicant’s concession that there is little she could do about it; the Applicant’s refusal to engage in play therapy with SH. The complaint was settled in mediation on February 5, 2020.

9Given that the issues identified above were settled, I will not address issue number 10 in the current Application.

10The Respondent provided submissions and evidence that the Applicant’s concerns were before the Court and therefore should not be subject to CFSRB review. In particular:

• The Applicant’s concerns that SH was told not to listen to her mother were included in the Answer and Plan of Care dated July 31, 2020.

• The issue of supports for domestic violence were included in the Applicant’s Answer and Plan of Care dated July 31, 2020; the Applicant’s affidavit sworn on July 3, 2020; and the affidavit of Jennifer Hill sworn on March 5, 2020.

• The Applicant’s concerns regarding play therapy were included in her Answer and Plan of Care dated July 31, 2020; as well as in the affidavit of Rachel Wilson sworn on august 17, 2020.

• The Applicant’s 72-hour wait for antibiotic treatment was included in Jennifer Hill’s affidavit sworn on March 5, 2020.

• The medication issue was addressed in the Applicant’s Answer and Plan of Care dated July 31, 2020; and the affidavit of Rachel Wilson sworn March 5, 2020.

• The Respondent’s reasons to remove SH were addressed in the Answer and Plan of Care dated July 31, 2020 as well as the Applicant’s affidavit filed with the Court.

• The Applicant’s concerns regarding VH were included in the Applicant’s affidavit sworn July 3, 2020; her Answer and Plan of Care dated July 31, 2020 and the affidavit of Rachel Wilson sworn on July 9, 2020.

• The Applicant’s allegations that the Respondent has made her out to be the worst mother and that the Respondent staff do not want to assist her were addressed in the Applicant’s Answer and Plan of Care dated July 31, 2020; and in an affidavit of Rachel Wilson sworn July 9, 2020.

THE LAW

11Section 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

12The 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

13In analyzing the claim, I focused on whether the issues/concerns set out in the Application had been or are currently before the Court. I then considered whether any issues identified by the Applicant were separate and different from the substantive issues before the Court.

14Upon review of the documents provided by the Applicant and Respondent, I find that issues/concerns 1 – 9 have been placed squarely before the Court in multiple affidavits, plans of care, and motions. As noted above, issue 10 was settled in previous CFSRB proceedings.

15The Applicant alleged that the Respondent did not hear and follow-up on the Applicant’s concerns regarding SH’s increasingly violent behaviour at school and home. The Applicant’s Answer and Plan of Care dated July 31, 2020 spoke about SH’s violent behaviour at school and home as well as the involvement of the Respondent in addressing this issue (see section on SH development). In addition, paragraph 56 outlined several instances where the Applicant reported and turned to the Respondent for assistance with SH’s behaviour, finally paragraph 48 summarized the Applicant’s concerns with the Respondent’s lack of empathy and understanding for her situation.

16With respect to issue/concern 2, the Applicant was concerned that Respondent staff did not assist the Applicant in removing her abusive partner from the home. The Answer and Plan of Care dated July 31, 2020 at paragraph 23 clearly addressed the Applicant’s experience of domestic violence and the discussions with the Respondent and YMCA staff. Issues of the Applicant’s experience of domestic violence and her interaction with the Respondent on this issue of domestic violence and safety planning were addressed in the affidavit of Jennifer Lynn Hill sworn on March 5, 2020 at paragraphs 44 -59.

17The Applicant’s concern regarding the Respondent’s failure to consider the impact of play therapy on SH is an issue that was addressed in paragraph 56 (h and i) of the Answer and Plan of Care. The evidence regarding this issue was addressed in paragraph 30 of Rachel Wilson’s affidavit sworn on July 9, 2020. The Applicant’s concerns with SH’s treatment and the Applicant’s failure to address the treatment plan from Kingston Hospital was addressed in paragraphs 16 – 23 of Rachel Wilson’s affidavit sworn on March 5, 2020.

18The Applicant was concerned that Respondent staff threatened to take the Applicant to court if she stopped play therapy for SH upon the advice of SH’s doctor. This issue was addressed in paragraph 56 (l) of the Answer and Plan of Care and noted in paragraph 23 of Rachel Wilson’s affidavit sworn on March 5, 2020. SH’s medication and the Applicant’s lowering of the dosage was discussed in paragraphs 203, and 216-219 of Jennifer Lynn Hill’s affidavit sworn on March 5, 2020, and the Applicant’s follow-through on therapeutic service recommendations was addressed in paragraphs 206-208, 252, 260. The Applicant’s failure to follow recommendations for SH’s treatment were included in paragraphs 49-69 of Form 8B submitted to the Superior Court of Justice on March 6, 2020.

19The Applicant was concerned that Respondent staff had accused her of neglecting SH’s medical care in relation to an ear infection. Paragraphs 238, 245-250 of Jennifer Lynn Hill’s affidavit to the Court sworn on March 5, 2020 addressed this issue.

20The Applicant was concerned that Respondent staff apprehended SH because the Applicant had not administered some medication, and disregarded the communication between the Applicant and SH’s doctor relating to the medication. The issue of the Applicant’s discontinuation of SH’s prescription was addressed in paragraph 46 of the Answer and Plan of Care. This issue was also addressed in paragraphs 30 and 53 of Rachel Wilson’s affidavit sworn on March 5, 2020.

21The Applicant was concerned with access to SH after her apprehension. Issues of supervised access between the Applicant and SH were addressed in the Affidavits of Rachel Wilson sworn on March 5, 2020 and Jennifer Lynn Hill sworn on March 5, 2020. The Plan of Care for SH dated March 5, 2020 addresses the issue of supervised access between the Applicant and SH.

22The Applicant complained that Respondent staff did not hear the Applicant’s concerns regarding VH being placed with her father. The alleged sexual abuse and apprehension of VH were addressed in the “Recent Events Leading to VH Being Placed in Care of SC” section of the Answer and Plan of Care. In addition, the Applicant’s Affidavit sworn on July 3, 2020 addresses the sexual assault allegations in detail.

23The Applicant was concerned that the apprehension of her 2 daughters and possible apprehension of her son were the result of a personal issue with Respondent staff. I note that the evidence presented by the Respondent is rife with child protection concerns as well as with evidence regarding the Applicant’s mental health struggles e.g. Affidavit of Rachel Wilson dated July 9, 2020 which comments on the reintegration plan and supports for the Applicant’s parenting, as well as the Applicant’s history of conflict with supports. (paragraph 40).

24Finally, as noted above, the issue of Respondent staff allegedly informing SH that she did not have to follow the directions of her mother were addressed at previous CFSRB proceedings. Despite this, I note that the Respondent has indicated that this issue was presented to the Court in the Answer and Plan of Care dated July 31, 2020.

25Based on my review of the documents presented, I find that the issues/concerns identified by the Applicant have been placed before the Court on multiple occasions and in multiple formats.

26I then considered whether or not any of the issues identified by the Applicant were separate and different from those that were before the Courts. I simply could not find any separate service-related issues. I also find that the Applicant’s submissions related to the applicability of Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441 were undermined by the core argument of the decision which focused on the CFSRB’s jurisdiction to only address issues that were separate and distinct from issues before the Courts.

27I note that this is the second application to the CFSRB from the Applicant with several overlapping complaints. The Applicant is reminded that any future complaints must be distinct from the past and current complaint. Repeated complaints on the same issues in the future may be deemed an abuse of process.

ORDER

28The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

29Pursuant 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.