KW v. Family and Children’s Services of St. Thomas and Elgin, 2021 CFSRB 18

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

KW Applicant

-and-

Family and Children’s Services of St. Thomas and Elgin Respondent

DECISION

Adjudicator: Daniel McSweeney Date: March 22, 2021 Citation: 2021 CFSRB 18 Indexed As: KW v Family and Children’s Services of St. Thomas and Elgin (CYFSA s.120)

WRITTEN SUBMISSIONS

KW, Applicant Self-Represented

Family & Children’s Services of St. Thomas and Elgin, Respondent Joyce Dittrich, 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 allegation is that 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 3 children: KL and BL who are placed with their father; and their half sibling MR who is placed with the Applicant’s mother (the “Children”). The Application alleged the following issues/concerns in her complaint:

1. The Applicant was not provided a reason for the apprehension of the Children;
2. The Applicant alleged that the Respondent apprehended the Children with no reason or based on false evidence; and ignored the Applicant’s evidence e.g. haunting of the home;
3. The Applicant’s concerns with the placement of one of the Children (MR) with her mother were unheard by the Respondent;
4. The Respondent has not heard the Applicant’s concerns regarding the mental health of her son MR;
5. The Respondent put her son’s life at risk by having him anesthetized at the dentist;
6. The Applicant was not provided with access to one of her sons and this son has not had access to his siblings for 5 months; and the Applicant is concerned with access to the other 2 Children;
7. The Respondent did not hear the Applicant’s concerns regarding one of the Children’s fathers having access to her son and the impact that this has on her son’s mental health;
8. The Respondent has not heard the Applicant’s concerns related to the impact of their decisions on her and the Children;
9. The Respondent reported the Applicant’s situation to Ontario Works, and Service Canada officials;
10. The Respondent has not asked for consents from the Applicant regarding the care of the children;
11. The Respondent does not have valid health cards or birth certificates for the Children;
12. The Respondent has ignored the Applicant’s needs and neglected her; and has not provided support for her and MR;
13. The Respondent has appointed her son a counsel without consideration of the impact of this on the mental health of her son; and
14. The Applicant is concerned that her son’s conversations with her were coached and monitored.

4The Respondent indicated in its Summary Response that the CFSRB did not have jurisdiction to review the complaint pursuant to section 120(8) which prohibits the CFSRB from reviewing issues that are before the Court or were before the Court.

5Two of the Applicant’s children (KL and BL) have been placed in the temporary care of their father by the Court. The Court has placed MR into the care of the Respondent. Pursuant to a subsequent order, MR was placed in the temporary care of his maternal grandmother.

6The Child Protection matter will return to the Superior Court of Justice on March 25, 2021 which the Respondent expects to be adjourned until records are received. The matter will then proceed with a Summary Judgement Motion or Trial.

7The Respondent provided copies of the following Court documents along with its Summary Reply:

• Temporary Order dated September 10, 2020
• Temporary Order dated October 15, 2020
• Protection Application dated February 2, 2021
• Endorsement dismissing the Applicant’s contempt motions dated February 18, 2021 (also provided by the Applicant)
• Temporary Order regarding police records dated February 18, 2021

8In a Case Management Direction (CMD) dated March 9, 2021, the parties were directed to provide written submissions on the CFSRB’s jurisdiction to hear the complaint as per section 120(8) of the Act. 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.

9The Applicant sent an e-mail to the CFSRB on March 17, 2021 which reiterated the concerns in her application, and which provided some statements related to the merits of her complaint. The Applicant provided 4 documents as well as one voice recording all of which did not address the CFSRB’s jurisdiction to review the complaint.

10Along with her Application, the Applicant attached the following documents:

• Affidavit in support of contempt motion dated February 10, 2021
• Respondent’s Response to Request to Admit dated November 20, 2020
• Final Order regarding access of KL and BL to their grandmother dated February 14, 2014
• Final Order regarding access to KL and BL dated March 7, 2016
• Final Order related to custody dated January 31, 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

13I turned my mind to whether the CFSRB had jurisdiction to hear a complaint which is before the Court or has been addressed by the Court. Section 120(8) is clear that the CFSRB cannot conduct a review of a complaint if: “the subject of the complaint is an issue that has been decided by the court or is before the court”. My reading of this section of the Act confirms that the concept of “subject of the complaint” is a broad category that encompasses more than the content of any specific issue raised by a party before the Court. As such, a specific issue may not have been raised in Court proceedings; however, the proceedings may have addressed the broader subject matter included in a complaint.

14The rationale for the apprehension and placement of all 3 Children, parental and sibling access arrangements; the Applicant’s requirements to meet with Respondent workers and behavioural expectations for the Applicant during meetings with Respondent workers; the Applicant’s housing situation; recommendations that the Applicant attend counselling; drug use and testing of the Applicant; and the role of the Respondent have been before the Court and have been documented in Temporary Orders dated September 10, 2020; and October 15, 2020.

15The Protection Application addresses custody; access between the Applicant and the Children; access between MR and his father; the reasons for apprehending the Children (risks associated with exposure to domestic violence; physical and emotional harm resulting from the mother’s mental health and possible substance use); the Applicant’s contempt motion regarding the authority of the Respondent to remove the Children; the Applicant’s concerns regarding her mother caring for MR; MR’s father’s criminal charges and past violent behaviour; the Applicant’s criminal charges; neglect of the children and failure to provide food and appropriate shelter; physical and emotional abuse of the Children by the Applicant; MR’s need for dental and medical attention, including having to be placed under general anesthetic due to his inability to sit still; the Applicant’s failure to meet with Respondent staff to arrange for access visits with MR; the Applicant’s mistreatment of Respondent staff and negative interactions between the Applicant and staff; arrangements by the Respondent to obtain MR’s health card; and BL and KL’s concerns for their mother’s behaviours and drug use.

16The Affidavit submitted by the Applicant in support of her contempt motion addressed the Applicant’s concerns with Respondent staff around the apprehension and regarding interactions between the Applicant and Respondent staff after the apprehension; the Applicant’s concerns regarding the Respondent’s alleged disregard for trauma and health history of her and MR; access issues between MR and his father; the Applicant’s concerns with her mother’s care of MR and his safety in the custody of his grandmother; the Applicant’s efforts to seek assistance for MR’s mental health; the Applicant’s concerns regarding access between her and MR; and the Applicant’s concerns with MR’s father.

17The Applicant alleged in her complaint that the Respondent reported her to Ontario Works and Service Canada. While these reports were not addressed specifically in the documents before me, I note that the Applicant had the opportunity to raise her concerns with Respondent staff in the contempt motion presented to the Court. If the Applicant felt that Respondent staff overstepped by reporting her to other governmental authorities, the contempt motions presented an opportunity for her to raise these concerns. As such, I find that the issue of Respondent Staff’s treatment of the Applicant have been before the Court.

18A review of the documents before me clearly indicates that all the issues included in the Applicant’s complaint were or are currently before the Court. The Applicant has the opportunity to raise any existing or new concerns during the ongoing Court proceedings.

SUMMARY

19Based on a review of the documents presented by the Respondent, I find that all the issues identified by the Applicant in her complaint have been or will be before the Court. The CFSRB does not have jurisdiction to review issues that were or are currently before the Court pursuant to section 120(8) of the Act.

ORDER

20The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

21Pursuant 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.