NB v. Family and Children’s Services of Renfrew County, 2021 CFSRB 14

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

NB Applicant

-and-

Family and Children’s Services of Renfrew County Respondent

INTERIM DECISION

Adjudicator: Tamara Jordan Date: March 09, 2021 Citation: 2021 CFSRB 14 Indexed As: NB v Family and Children’s Services of Renfrew County (CYFSA s.120)

WRITTEN SUBMISSIONS

NB, Applicant Self-represented

Family and Children’s Services of Renfrew County, Respondent Caitlyn Symsyk-Dekker, Counsel

Introduction

1This is an Application filed with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1 (the “Act”).

2The CFSRB found the Application eligible to proceed under sections 120(4)4 and 120(4(5) of the Act. It is scheduled for a Hearing on April 12 and 13, 2021.

3At the January 21, 2021 Pre-Hearing in this matter, six (6) issues were identified to be addressed at the Hearing. The parties requested and were given an opportunity to provide oral submissions regarding whether the CFSRB had jurisdiction to hear two (2) of those issues, namely 2(d) and 2(e). The Member presiding as the Pre-Hearing declined to decide the issue to allow the parties to make further submissions and file Court documents in support of their respective positions.

4In a Case Management Decision dated February 10, 2021 (“CMD”), the CFSRB directed the parties to make written submissions on the CFSRB’s jurisdiction to hear issues 2(d) and 2(e). The CMD also informed the parties that they may find it useful to review the decision of the Court of Appeal for Ontario in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441. The CMD included information on how to access that decision online.

5For the reasons set out below, I find that the CFSRB has partial jurisdiction only on issue 2(d) and does not have jurisdiction on issue 2(e).

the law

6Subsection 120(8)(a) of the Act states:

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.

background

7The Applicant is the mother of three children. JB is the father of two of those children, HB and AB.

8On November 30, 2017, a domestic family Court Order was made between JB and the Applicant for joint custody of HB and AB, including shared parenting time (“2017 Parenting Order”).

9On or about March 5, 2020, the Applicant was charged with assaulting HB. Those charges are still before the criminal Court.

10On March 6, 2020, the Applicant was released from police custody pursuant to an Undertaking. Paragraphs 5(d) and (e) of the Undertaking provide that, “[the Applicant] must not communicate, directly or indirectly, with [HB] or [AB] or [JB], except in accordance with the following conditions: You must not go to … their residence, or their schools, or any place they are known to be with the exception of attending family court matters and supervised access through Family and Children’s Services or suitable arrangements through Family and Children’s Services”.

11On August 18, 2020, the Applicant brought a motion to the Superior Court of Justice (“SCJ”) to “reinstate” her access as it pertains to AB and pursuant to the 2017 Parenting Order. The Respondent attended the hearing and made submissions as a Friend of the Court. The presiding SCJ Justice found that while the 2017 Parenting Order remains in full force, its terms are now effectively restricted by the Undertaking given by the Applicant in the criminal proceedings. The SCJ Justice found that she did not have jurisdiction to overrule the Undertaking and that the Respondent holds discretionary power over the Applicant’s access with AB.

12Correspondence submitted by the Respondent, including email between the Crown involved in the criminal proceeding and the Respondent, indicates that the Respondent is working with the Crown to approve a variance to paragraph 5(e) of the Undertaking that indicates, “subject to a family court order made after today’s date”. The Crown notes in her February 8, 2021 email to the Respondent that the Applicant “is only prepared to consent to change the order if the condition is removed in its entirety”.

13The Applicant has brought a further Motion to Change in family Court in relation to the 2017 Parenting Order.

analysis

14The Court of Appeal for Ontario 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).

15It is undisputed that the 2017 Parenting Order governs parenting time as between AB and HB and the Applicant, and that the criminal Undertaking restricts this Order and provides the Respondent sole discretion to supervise or make “suitable arrangements” for the Applicant’s access to those children.

Issue 2(d): the Respondent’s disregard for the Applicant’s concerns that [JB] has withheld the children and have (sic) not allowed her access since March 2020.

16The Respondent submits that issue 2(d) pertains to JB’s alleged withholding of the children and promotion of parental alienation and these issues will be before the Court in the scheduled family Court proceeding. The Respondent also submits that issue 2(d) relates to the Respondent’s management of access between the Applicant and her children, was recently before the SCJ on August 18, 2020, is being discussed with the Crown in the criminal proceeding, and will be addressed at the trial or a pre-trial motion in family court.

17The Applicant responds that issue 2(d) relates to the service she received by the Respondent in that she feels the Respondent disregarded JB’s behaviour and the Applicant’s concerns with it. The Applicant submits that the Respondent should at least hear these concerns related to its service to her from March to August 2020, after which time the Respondent noted her worries.

18The CFSRB finds that the issue of the Applicant’s access to AB and HB is before the Court in the ongoing family law proceedings between NB and JB, and currently within the Respondent’s sole discretion as restricted by the Undertaking in criminal Court. In these circumstances, the CFSRB has no jurisdiction to review the Applicant’s access with AB or HB, or the actions by JB in relation to the Applicant’s access with her children.

19However, whether the Respondent disregarded the Applicant’s concerns about JB’s alleged interference with the Applicant’s access with her children since the Respondent has been tasked (involuntarily since March 6, 2020 under the criminal Undertaking) to effectively manage that access is a service issue that is separate and distinct from the substantive issues in the domestic family law and criminal Court proceedings. This part of issue 2(d) is within the CFSRB’s jurisdiction to determine.

Issue 2(e): the failure by the Respondent to facilitate contact between the Applicant and her son, and the Respondent’s dragging its feet in allowing her son to come home.

20The Respondent submits that issue 2(e) also relates to the Applicant’s access with her children, and like 2(d), the issue was recently before the SCJ on August 18, 2020, is being discussed with the Crown in the criminal proceeding, and will be addressed at the trial or a pre-trial motion in family Court. The Respondent also states that the CFSRB does not have the power to order access between the Applicant and her son, AB, and that only a judge may do so.

21The Applicant herself notes at paragraph 45 of her submissions that “access is still in the hands of [the Respondent] until a variation is made, or the criminal charges are dealt with”.

22Under the criminal Undertaking, it is currently within the Respondent’s sole discretion to determine what access constitutes “suitable arrangements” as between the Applicant and AB. There are no separate and distinct service considerations related to this issue. The CFSRB has no jurisdiction on issue 2(e).

order

23The CFSRB will proceed to a hearing on whether the Applicant’s concerns related to JB’s interference with her access to her children were disregarded by the Respondent, in addition to the other four (4) issues confirmed at the January 21, 2021 Pre-Hearing.

confidentiality order

24Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Application with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.