LL v Children’s Aid Society of Algoma, 2021 CFSRB 5

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LL Applicant

-and-

Children’s Aid Society of Algoma Respondent

DECISION

Adjudicator: Daniel McSweeney Date: January 28, 2021 Citation: 2021 CFSRB 5 Indexed As: LL v Children’s Aid Society of Algoma (CYFSA s.120)

WRITTEN SUBMISSIONS

Children’s Aid Society of Algoma, Respondent John J. Rossi, 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 his interests were made, or a chance to be heard when he raised concerns about the services he is receiving. The Respondent is alleged to have failed to provide the Applicant with reasons for decisions that affected his interests.

3The Applicant is the father of one daughter (“Child”). The Application alleged the following issues/concerns in his complaint:

1. The Applicant was concerned that his complaints about placing the Child with her mother were not heard by the Respondent;
2. The Applicant was concerned with a conflict of interest situation as the maternal grandmother of the Child worked with the Respondent and she is alleged to have broken rules and regulations in relation to the protection issues of the Child;
3. The Applicant was concerned that the decisions made by the Respondent were biased against him;
4. The Applicant is concerned that paperwork submitted to the Court was forced; and
5. The Respondent has breached an order by the Court.

4The Respondent indicated in its Summary Response that the maternal grandmother is a Child Protection Worker with the Respondent and has at times made reports to the assigned worker or the Intake Department related to the Child’s mother and the Applicant. The worker assigned to the file is a manager from a different department than the Child’s grandmother. The Respondent has arranged for the file to be supervised by a worker from an external child protection agency.

5The Respondent argued that the CFSRB did not have jurisdiction to review the complaint as it is barred from reviewing issues that are before the Court pursuant to section 120(8) of the Act. In addition, the Court has rejected the Applicant’s theories. The Respondent indicated that the Applicant has been provided an opportunity to be heard and that he has been provided with reasons for decisions that affected his interests.

6In a Case Management Direction (CMD) dated January 15, 2021, the Applicant was directed to provide written submissions on the CFSRB’s jurisdiction to hear the complaint as per section 120(8) of the Act. The Applicant was asked to refer to the Ontario Court of Appeal decision in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441.

7The Applicant did not provide submissions.

8The Respondent, however, provided additional submissions on jurisdiction in which it argued that issues related to breaches of judicial orders are issues before the Court. The Court has dealt with the issue of the maternal grandmother’s employment with the Respondent through affidavits and evidence filed before the Court. Issues of custody have been reviewed and decided by the Court. The Respondent reiterated its argument that the CFSRB does not have jurisdiction to review the complaint.

9The Respondent also included the following documents along with its Summary Reply:

• Child Protection Application dated August 21, 2020
• Notice of Motion dated August 21, 2020
• Affidavit of AH sworn August 21, 2020
• Notice of Motion (police records of mother) dated August 31, 2020
• Affidavit from AH sworn August 31, 2020
• Notice of Motion (SAH records) dated August 31, 2020
• Affidavit of AH sworn August 31, 2020
• Notice of Motion (police records of father) dated August 31, 2020
• Affidavit of AH sworn August 31, 2020
• Answer and Plan of Care of mother dated September 16, 2020
• Affidavit of AH sworn September 24, 2020
• Affidavit of AH re: police records, sworn November 3, 2020
• Affidavit of AH re SH records sworn November 3, 2020
• Order of Justice R. Kwolek dated August 24, 2020
• Order of Justice J.P. Condon dated September 16, 2020
• Order of Justice M. Dunn dated September 23, 2020 re: police records of father
• Order of Justice M. Dunn dated September 23, 2020 re: police records of mother
• Order of Justice R. Kwolek dated October 6, 2020

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

12I 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.

13There is a history of child protection involvement with this family unit from 2018. Issues of custody, access, supervision of the Child have been placed before and decided by the Court on several occasions. The reasons for the Respondent’s positions regarding the need to place the child under protection and regarding custody and access with the Mother and/or the maternal grandmother are well documented in the various motions and affidavits presented to the Court.

14The Applicant alleged that the Respondent did not hear his concerns with the mental health of the Child’s mother. I find that these issues have been presented and addressed before the Court. The Court had ordered the release of medical, mental health, and police records of the Child’s mother. The affidavits of AH and other documents addressed these issues. For example, the Answer and Plan of Care submitted to the Court by the Child’s mother on September 16, 2020 addressed issues of her alleged drug use and her mental health. The Affidavit of AH dated August 21, 2020 spoke about the mental health and addictions issues of the mother. The Affidavit of AH sworn November 3, 2020 addressed the mental health and addictions issues of the Child’s mother. The Order by Justice Kwolek dated August 24, 2020 addressed the Child’s mother mental health and addictions problems and the placement of the child in the maternal grandmother’s home.

15Given the totality of the evidence before me, I find that the concerns with the Child’s mother’s mental health and addictions issues and ability to parent have been placed before the Court and were considered by the Court in its various Motions and Orders. As such, the CFSRB does not have jurisdiction to review Issue 1 in the complaint.

16The Applicant alleged that the maternal grandmother was in a conflict of interest situation because of her employment with the Respondent and that she had broken rules and regulations.

17The Affidavit of AH sworn on August 21, 2020 outlined the history of the interaction between child welfare authorities and both parents. It addressed the interaction between the Respondent and the maternal grandmother (see paragraphs 61-68, 73-74). The Affidavit also provided the Respondent’s rationale for recommending that the child be placed in the care of the maternal grandmother under the supervision of the Respondent. The Affidavit by AH sworn on August 31, 2020 addressed a report to the Respondent by the maternal grandmother related to the attempted suicide of the Child’s mother and other concerns.

18In Paragraph 39 i) of the Affidavit of AH sworn on August 21, 2020, AH indicates that she had spoken with the Applicant who expressed concern that his concerns would not be addressed properly as the maternal grandmother was a high-level CAS worker.

19For these reasons, I find that the Applicant’s concerns regarding the maternal grandmother and her employment with the Respondent were before the Court. As such, the CFSRB cannot review Issue 2 in the complaint.

20The Applicant alleged that he was the victim of bias on the part of the Respondent. I note that the Applicant has not provided specific examples of bias in his Application. From the documents before me, it would seem that the Applicant’s conclusions of bias stem from the Respondent’s actions and conclusions/decisions regarding custody, access, and the investigation of alleged treatment of his child welfare concerns. These are issues which have been placed squarely before the Court. These issues relate to the best interests test which the Court must apply in deciding the child protection issues. As such, the most appropriate forum for the Applicant to challenge alleged bias by the Respondent staff as it relates to their assessments, evidence, actions, and decisions is through the Court. The Court must weigh the evidence presented and make factual determinations, including whether the Respondent’s evidence and actions were appropriate. As such, I find that the CFSRB does not have jurisdiction to address Issue 3.

21Issue 4 (forced paperwork) relates to paperwork that was provided to the Court. Issue 4 deals with court processes and disclosure which are the sole jurisdiction of the Court.

22Issue 5 relates to the breach of a Court Order. The Court also has the sole jurisdiction to deal with alleged breaches. As such, I find that Issues 4 and 5 cannot be reviewed by the CFSRB as they fall squarely within the purview of the Court.

SUMMARY

23Based on a review of the documents presented by the Respondent, I find that all the issues identified by the Applicant in his 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.

24The Applicant was represented by counsel throughout the various Court proceedings. The proceedings will continue on March 19, 2021. The Applicant is free to raise his concerns before the Court at this time.

ORDER

25The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

26Pursuant 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.