CHILD AND FAMILY SERVICES

REVIEW BOARD

BETWEEN:

MS

Applicant

-and-

Children’s Aid Society of Toronto

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: June 24, 2021

Citation: 2021 CFSRB 47

Indexed As: MS v Children’s Aid Society of Toronto (CYFSA s.120)

WRITTEN SUBMISSIONS

Children’s Aid Society of Toronto, Respondent

Yvonne Fiamengo,

Counsel

INTRODUCTION AND BACKGROUND

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

2The Complaint was found eligible pursuant to sections 120(4)4 and 120(4)5 of the Act. It is alleged 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 received; and the Respondent is alleged to have failed to provide the Applicant with reasons for a decision that affected her interests.

3The Applicant is the mother of one son (the “Child”).

4The Applicant identified 7 Issues/Concerns in her Complaint including:

1. Applicant alleged that the Children’s Aid Society of Toronto (Society) did not consider her custodial parental rights from 2013 to the present;

2. The Applicant alleged that the Society did not consider the Child’s rights in the decisions it made about him;

3. The Applicant alleged that the Society defamed her and made false claims about her such as the Child’s education, health, and safety;

4. The Applicant alleged that Court Orders are not being followed e.g. access and custody and that the Society has not heard her concerns regarding the orders not being followed;

5. The Applicant alleged that the Society dismissed suitable family members as possible placements for the Child;

6. The Applicant alleged that her son is in need of protection and should be placed with his mother; and

7. The Applicant alleged that she has not been provided with disclosure from the Society despite past requests.

5In its Summary Response, the Respondent argued that the Applicant has been provided with an opportunity to have her concerns heard on multiple occasions, including but not limited to Court proceedings. The Applicant has been provided with reasons for the Respondent’s decisions that affected her interests. The Applicant was represented by Counsel throughout the various Court proceedings.

6The parties were directed to participate in a Pre-Hearing/Mediation Teleconference on November 26, 2021. The CFSRB Member reported that during the introductory comments the teleconference was terminated on the Applicant’s end. The Applicant subsequently communicated with the CFSRB that the connection was cut due to a storm in her location.

7A Teleconference was held on January 22, 2021 which was adjourned to January 27, 2021. On January 27, 2021 parties discussed the length of the hearing, scheduling, and other procedural issues. A one-day hearing was scheduled for February 19, 2021. The February 19, 2021 hearing did not take place because of technical issues on the part of the Applicant. The proceedings were adjourned.

8I noted that the Pre-Hearing Teleconferences did not clarify or narrow the issues outlined in the Application. Rule 24.4 in the CFSRB Rules of Procedure provides the CFSRB discretion to define and narrow the issues that will be addressed at a hearing. As such, I reviewed the Application, and narrowed the issues therein to the 7 issues identified in paragraph 4 above.

9A subsequent review of the documents filed for the hearing revealed that many of the issues identified in the Application were issues that had been decided before the Court or are before the Court.

10Parties were asked to provide submissions on whether the CFSRB had jurisdiction to address the Issues/Concerns in the Applicant’s Complaint pursuant to s. 120(8) of the Act; and what is the most appropriate format of the hearing, should a hearing be necessary. In addition, the Applicant was asked to affirm that the list of 7 issues accurately reflected the Issues/Concerns in her Complaint.

11The Applicant failed to provide submissions or comments to the CFSRB. The Respondent provided written submissions along with caselaw on the issue of jurisdiction. These documents supplemented the Court documents submitted previously to the CFSRB which addressed the Applicant’s history with the Court and the Respondent over the years.

THE LAW

12Section 120(8) states that the:

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

13The 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).

14The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or videoconference. Subsection 8.1 of the Rules state:

In deciding the format of a hearing, the CFSRB will consider:

a) whether it is a fair and accessible process for the parties;

b) the costs and efficiency of the process;

c) the potential for a more expeditious resolution;

d) the convenience of the parties;

e) the consistency with the CFSRB’s mandate;

f) whether the facts or evidence may be agreed upon;

g) the estimated duration of the hearing;

h) whether the issues for hearing are predominantly legal issues;

i) whether oral testimony is likely to be needed;

j) any objections to the format of the hearing.

ANALYSIS

15My analysis focused on 3 issues: the framing of the 7 Issues/Concerns in the Applicant’s Complaint; the CFSRB’s jurisdiction to review Issues/Concerns that have been before the Court or are currently before the Court; and the format of the hearing.

Framing of the Issues/Concerns

16As noted above, I reviewed the Applicant’s Complaint and accompanying documents and identified 7 Issues/Concerns. As noted above, the Applicant did not provide comments or submissions related to the list of Issues/Concerns included in the Case Management Direction (CMD) of May 25, 2021.

17With respect to hearings of section 120 complaints, Rule 24.4 of the CFSRB Rules of Procedure provide me with the ability to exercise my discretion to define and narrow the issues. I have done this in relation to the Complaint before me. Given the Rule, and given the Applicant’s failure to provide submissions or comments on the framing of the issues, the proceedings will focus on the 7 Issues/Concerns identified in the CMD.

CFSRB’s Jurisdiction Pursuant to s. 120(8)

18Section 120(8) of the Act 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.

19After careful review of the submissions and documents provided by the Respondent, I find that all the Applicant’s Issues/Concerns were placed before the Court and therefore the CFSRB is precluded from addressing these Issues/Concerns.

20The Respondent has submitted documents from the Court which establish that the Applicant and the Child have been involved in child welfare proceedings before the Court since 2014. The Applicant and Child were subject to child welfare proceedings in Dryden between July 11, 2014 and June 26, 2015. The proceedings resulted in an order that the Child was in need of protection and placed him in the care of the Applicant under a 6-month Supervision Order. The file was transferred to Toronto.

21In Toronto, the Applicant was subject to Status Review proceedings which concluded on December 14, 2016 and placed the Child in the legal custody of his caregivers with access to his mother.

22In February of 2019, the Applicant brought a motion to vary the Custody Order to provide the Applicant custody of the Child so that she could move him to Alberta. The Applicant did not cooperate with the Respondent in an assessment of the Applicant’s plan.

23On November 18, 2020, the Respondent initiated child protection proceedings.

24Based on my review of the Court documents before me and the Respondent’s submissions, I find that issues of the Applicant’s parental rights; the Child’s rights; custody; access; concerns with the Applicant’s parenting and risk of harm to the Child; and what is in the best interests of the Child have been placed squarely before the Court at proceedings on June 2, 2015, March 1, 2016; December 14, 2016; and February 25, 2019. I also find that these issues are part of the child welfare proceedings which are returnable to the Ontario Court of Justice on July 12, 2021.

25For example, the Order dated June 2, 2015 addressed custody, access, the Applicant’s residence; and risks to the Child associated with the Applicant’s parenting capacity; mental health; unhealthy relationships including domestic violence; her childhood trauma; her use of alcohol and drugs, and the need for alcohol and drug assessment.

26The August 12, 2016 Amended Status Review decision addressed issues of custody and access to the Child; the Applicant’s parenting skills; alleged risks to the Child; the Applicant’s mental health; the Applicant’s alleged abandonment of the Child; and difficulties that Respondent staff encountered when trying to work with the Applicant.

27The Amended Plan of Care (August 2016) discussed the placement of the Child; the Child’s access to the Applicant; and the Respondent’s concerns with the Applicant’s parenting capacity and actions. The Statement of Agreed Facts (August 2016) mentioned that the “A” family were supported by the Respondent’s Kinship Worker. The Applicant had the opportunity to raise any issues of placement and kinship at multiple opportunities throughout the Court processes.

28An affidavit from JL, Child Protection Worker, dated August 23, 2019 and presented to the Court addressed the Applicant’s concerns related to access, and the Affiant’s recommendation that access between the Applicant and the child be at a supervised access centre.

29The Respondent’s Child Protection Status Review Application dated November 18, 2020 addressed the difficulties that Respondent staff have encountered in trying to assess the Applicant in relation to her Custody Motion, as well as the risk of destabilization of the Child’s placement because of the Applicant’s behaviours. The Application also recommended that the Child remain with the A family subject to Society supervision without terms, and that the Applicant’s access be supervised by the Society.

30Given the documents presented to the Court over the past 7 years, I find that Issues/Concerns 1 – 7 are issues that have been decided or are currently before the Court.

31I concur with the Respondent that the Applicant has not defined the alleged defamation alluded to in Issue/Concern 3. In addition, I agree that issues related to the Child’s education, health, and safety have been before the Court and are currently before the Court. The Applicant’s concerns with any statement by Respondent staff in relation to her as a parent are best addressed through the Courts.

32The issue of custody has been presented to the Courts through motions by both the Applicant and the Respondent. The Applicant was free to address kin placements with family members through the Court proceedings.

33Finally, with respect to the issue of disclosure, I note that the Office of the Information and Privacy Commissioner of Ontario currently has jurisdiction to address issues related to access and disclosure of information. Furthermore, I concur with the Respondent that the Respondent has an obligation to provide parties, including the Applicant, with disclosure during the course of active litigation. Given that the Applicant is currently involved in child protection proceedings before the Court, any concerns related to disclosure should be addressed to the Court.

Format of the Hearing

34The Applicant did not provide submissions on the format of the hearing. The Respondent submitted that the hearing should be held in writing for several reasons:

a) the Applicant resides in the province of Alberta;

b) the proceedings have twice been adjourned due to technology issues on the part of the Applicant;

c) there is ample written documentation to confirm that the issues raised in these proceedings have previously been decided by the Court, and are currently before the Court;

d) there continue to be public health restrictions and protocols related to COVID-19, which prevent an oral hearing form taking place within a reasonable timeframe; and

e) the Applicant has behaved in an erratic and unpredictable manner when engaging with the Society.

35Given that I have found that the CFSRB does not have jurisdiction to review the Applicant’s concerns and have dismissed the Complaint in its entirety, I do not have to address the issue of the format of the hearing.

SUMMARY

36In summary, I find that all 7 Issues/Concerns in the Applicant’s Complaint have been placed squarely before the Court in multiple proceedings since 2014. As such, the CFSRB is prohibited from reviewing these Issues/Concerns pursuant to s 120(8) of the Act.

37For these reasons, the Applicant’s Complaint is dismissed in its entirety.

CONFIDENTIALITY ORDER

38Pursuant 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.