TBL v. Family and Children’s Services of the Waterloo Region, 2021 CFSRB 51

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

TBL

Applicant

-and-

Family and Children’s Services of the Waterloo Region

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: July 13, 2021

Citation: 2021 CFSRB 51

Indexed As: TBL v Family and Children’s Services of the Waterloo Region

(CYFSA s.120)

WRITTEN SUBMISSIONS

TBL, Applicant

Self-Represented

Family and Children’s Services of the Waterloo Region, Respondent

Dianne Sousa, 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, SO 2017, c.14, Sched.1 (the “Act”).

BACKGROUND

2The Application was found eligible pursuant to sections 120(4)4 and 120(4)5 of the Act: the Applicant alleged that the Respondent has failed to provide her with an opportunity to be heard and represented when decisions affecting her interests were made or when she had concerns about the services she is receiving; and the Respondent is alleged to have failed to provide the Applicant with reasons for a decision that affects her interests.

3The parties were originally scheduled for a hearing on June 14, 2021. Subsequent to disclosure by both parties, I decided to convert the hearing into a Pre-Hearing to discuss issues to be addressed at the hearing; timeframes and events associated with the issues; and issues related to disclosure and filing of documents.

4At the Pre-Hearing, the following 7 issues were confirmed by the Applicant:

1. The Applicant alleges that the Respondent failed to hear her concerns regarding disclosures of abuse of the Children (physical, emotional, witnesses to domestic violence) and the impact the abuse has had on the Children’s mental health;

2. The Applicant alleges that the Respondent has not heard her concerns that the Respondent has not followed Waterloo Region’s investigation protocols e.g. the Respondent has failed to follow up on disclosures; and Ontario Protection Standards e.g. addressing cases where domestic violence is alleged; and establishing a trusting environment to interview the Children;

3. The Applicant alleges that the Respondent has not heard her concerns regarding establishing safety and support plans for the Children while they are in the care of their father;

4. The Applicant alleges that the Respondent has not heard her concerns regarding the alleged behaviour, actions, and style of its employee MG;

5. The Applicant alleges that the Respondent has not heard her concerns regarding reunification therapy between the Children and their father;

6. The Applicant alleges that her concerns regarding being discriminated by Respondent staff have not been heard; and

7. The Applicant alleges that she has not been provided with adequate reasons as to why the Respondent decided to close the protection file on March 1, 2021.

5The Applicant confirmed that her Application referred to a recent investigation that was closed on March 1, 2021; however, the Application also touched on historical issues, especially as they related to her current concerns. These historical concerns included a pattern of treatment and actions by Respondent staff which has resulted in her not being heard, her being discriminated by Respondent staff, and the Respondent’s failure to protect her Children.

6After receiving submissions, I decided that the Applicant was free to adduce evidence from the past at the hearing to provide context to her current concerns; however, the hearing would focus on issues that occurred between October 2020 and the closing of the file on March 1, 2021.

7At the Pre-Hearing, the Applicant explained that the documents she filed for the CFSRB hearing were also disclosed to the Court as part of her Children’s Law Reform Act (CLRA) proceedings. The Applicant confirmed that she would not call MG (worker) as a witness in the CLRA proceedings; however, she intended to call SC, her former worker at these proceedings.

8The Applicant also confirmed that the Court in the CLRA proceedings had before it documents related to the allegations of harm to the Children by their father associated with the timeframe of the current Complaint (Fall of 2020 until March 1, 2021). The Applicant also confirmed that the Office of the Children’s Lawyer (OCL) was involved in the CLRA matters as they related to the Children’s access to therapy.

9The Respondent’s Counsel argued that the CFSRB had enough information before it to decide the issue of jurisdiction; however, Counsel requested that the Applicant provide the CFSRB and the Respondent with copies of the written Opening Statements from the Applicant and the Children’s father in the CLRA proceedings. This may provide greater context as to which issues would be argued during the current CLRA proceedings. The Applicant agreed to provide the Opening Statements and other documents related to the issue of jurisdiction along with her submissions.

10The Applicant provided the CFSRB and the Respondent with an Outline of Her Opening Statement to the Court dated January 21, 2021. This Statement referred to many motions heard by the Court and endorsements by the Court since 2014 and up until January 6, 2021. The Outline set out the large volume of exhibits presented to the Court by the Applicant. The Outline addressed the impact of parental conflict on the Children; safety concerns for the Children; custody and access to the Children; the Children’s mental health; and the Children’s concerns about shared custody and their time with their father. The Outline also addressed several other issues which were not germane to the Application before me.

11The Outline of the Opening Statement by the Children’s father addressed issues related to access and custody; the mental health and preferences of the Children; and issues of the health and well-being of the Children.

12The Applicant submitted that the 7 issues identified in paragraph 4 above are not being addressed at trial. The Court and the CFSRB are tasked with different issues. The Applicant cited the Child and Family Services Act (CFSA) statements related to the duties of “service providers” including a children’s aid society as follows:

2.(2) Service providers shall ensure,

a) that children and their parents have an opportunity to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving; and

b) that decisions affecting the interests and right of children and their parents are made according to clear, consistent criteria and are subject to procedural safeguards.

13With respect to Issue 1, the Applicant submitted that the issue is not being raised before the Court. It relates to the statutory mandate of the Respondent to investigate and protect children when disclosures are made. The Court is hearing testimony regarding the Children’s lived experiences, views and preferences as presented through testimony, OCL reports, and other evidence.

14With respect to Issue 2, the Applicant submitted that issues of investigation protocols and the interviewing environment are not before the Court.

15The Applicant submitted that the Respondent had a statutory mandate to protect Children which is being challenged in Issue 3. The Court will be determining parenting time, decision-making, format of child exchanges and how communication will occur between the parties.

16Issue 4 was not before the Court as MG will not be called as a witness. The documents regarding the interaction between the Applicant and MG were presented to the Court to provide context relating to the Children’s lived experiences.

17The issue of reunification therapy is not before the Court; however, long-term child therapy is being heard by the Court. Both modalities are different.

18Finally, the Applicant argued that issues 6 and 7 are not before the Court.

19The Respondent submitted that the CFSRB does not have jurisdiction to hear the Applicant’s complaint as the subject matter of the complaint was squarely before the Court. The focus of the Applicant’s complaint is that the Respondent has failed to intervene and protect the Children from abuse by their father. The Applicant maintained that the Respondent did not conduct the investigation appropriately. The Complaint does not address whether the Applicant was given an opportunity to be heard or whether the Respondent’s decisions were adequately explained to her. The documents and will say statements presented by the Applicant to the CFSRB suggest that the Respondent heard the Applicant’s concerns, attempted to address them, and explained the reasoning behind decisions that were made.

20The Applicant indicated that she is presenting evidence related to the Children’s lived experience as context to the Court. The Respondent argued that the Applicant has a position before the Court as to the issues related to parenting time and decision-making related to the Children. The Applicant is asking the Court to make findings of fact that would support the order she desires. While the Applicant’s Opening Statement does not make a clear allegation that the Children are being abused by their father, the Respondent submitted that it makes sense that the Applicant would repeat the allegations in her Complaint (the Children are being abused by their father; and the Respondent has failed in its duty to detect the abuse) during the CLRA proceedings.

21The Respondent argued that the father’s care of the Children is at issue in the CLRA proceedings as the Applicant has raised that issue. The judge will make findings of fact about the father’s care of the Children, safety concerns while the Children are with their father; and whether the Applicant is pursuing a false narrative that the Children are in danger.

22The Respondent argued that there is a nexus between the core of the CFSRB complaint and the central issue before the Court. The Court will assess the allegations of abuse for their truth, and therefore the CFSRB does not have jurisdiction.

The LAW

23With respect to the CFSRB’s jurisdiction to review issues that have been or are currently before the Court, Section 120(8) 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

24The 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

25I turned my mind to whether the CFSRB had jurisdiction to address the Issues in the Complaint.

26Section 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.

27After careful review of the submissions and documents provided by the Applicant, I find that all 7 Issues in the Complaint have been placed or are currently before the Court. As such, the CFSRB is precluded from addressing these issues. pursuant to section 120(8) of the Act.

28In this particular case, the Applicant is unrepresented at the CFSRB as well as during the CLRA proceedings. The Applicant provided the CFSRB with over 275 pages of documents numbered 0580 to 0859. The Applicant confirmed that these documents were part of a larger package disclosed to the Court. The Applicant has had multiple appearances before the Court since 2014 and has disclosed thousands of pages of documents. I do not have the documents submitted by the Children’s father to the Court in relation to past or current proceedings. As such, I may not be aware that a particular issue has or has not been raised to the Court or decided by the Court.

29I understand that the Applicant’s intention was to provide both the CFSRB and the Court with as much information possible to provide context to the Children’s experience. In doing this, I find that the Applicant has placed all the 7 issues in her Complaint before the Court in the form of documentary evidence.

30I cannot predict which pieces of evidence will be referred to at Court, and what evidence will be considered by the Judge in assessing the best interests of the Children related to custody and access. For example, the Applicant and the Children’s father will adduce evidence from witnesses at Court, including one witness associated with the Respondent. What is clear; however, is that the Applicant has provided the Court with documents that relate to her concerns for the health and safety of the Children; her allegations that the Respondent has failed to hear her concerns and investigate her allegations fully; the Respondent has not implemented safety and therapy plans for the Children; the treatment she received from Respondent employee MG; and the Respondent’s decisions regarding her protection concerns.

31The judge in the current proceedings may decide on one or all of these issues; however, the CFSRB will not know that particular pieces of evidence that have been considered in deciding the CLRA matter.

32I will provide some examples of Court documents or documents submitted to various Court proceedings by the Applicant which support my finding.

33The Endorsement by Justice L. Madsen dated April 8, 2020 addressed an affidavit by the Applicant in which she alleged significant physical, sexual, financial, verbal and emotional abuse by the Children’s father and that she suffers from complex post-traumatic stress syndrome.

34An Endorsement by Justice J. Breithaupt Smith dated January 6, 2021, spoke to the Children’s emotional well-being and their mental health, including the report from the OCL clinician, and other counselling records.

35An e-mail from the Applicant to SC, Respondent worker (page 059) dated January 17, 2018 addressed the Applicant’s concerns related to the physical and mental health of the Children, including their need for counselling. The worker followed-up the e-mail with an offer to meet. In an email dated January 21, 2018 (page 0596) the Applicant addressed her ongoing concerns for her Children’s physical and mental health. The Applicant sent additional e-mails (pages 0603, 0604, 0605,0630, 0631) in which she outlined her concerns with the Children and their father, and in which she questioned the Respondent’s approach and response to her concerns. In an e-mail on page 0639, the Applicant’s Counsel asked about the status of the investigation.

36The Applicant has documented conversations with Respondent staff and sent notes from these conversations to staff. For example, on March 7, 2018 the Applicant sent an e-mail to SC regarding SC’s actions following a meeting and to follow-up on the meeting. (page 0736). On pages 0762-0764, the Applicant’s current spouse provided a summary to a March 27, 2018 meeting which addressed his concerns with the Respondent’s response to allegations of harm to the Children, and concerns regarding counselling for the Children.

37In communication on page 0778, the Applicant expressed her concern that she has been painted with the same brush as the Children’s father in not supporting the Children and their best interests. The e-mail also confirmed that the Respondent had not verified any abuse; a conclusion that the Applicant disputes.

38The risk of harm to the Children was addressed in closing letters dated July 7, 2017 (page 0645). The Applicant expressed her concerns with her Children and the Respondent’s apparent lack of action on the physical and emotional abuse allegations in an e-mail dated March 6, 2018 (page 0651).

39With respect to the 2020 and 2021 allegations in the Complaint, the Applicant included several e-mails between her and MG regarding child therapy and providing the Children with cell phones (pages 0782 – 0785). In one (0785) the Applicant alleges that there was a disconnect between the recommendations that MG allegedly provided the Applicant and the Children’s father.

40In an e-mail dated December 10, 2020 (page 0789, 0790, 0791), the Applicant wrote MG and indicated that she had concerns with the actions taken to investigate the allegations of child abuse; as well as had concerns with the services MG provided to her. The list of issues and the Applicant’s comments in the e-mail were exhaustive and addressed all of the issues in the Applicant’s complaint to the CFSRB. The e-mail addressed: the Applicant’s concerns with the investigation of abuse allegations; her concerns for the mental health of the Children; concerns regarding the interaction between MG and the Applicant and allegations of discrimination and ill treatment; concerns regarding the suggestion of unification therapy; concerns regarding safety planning for the Children; concerns that the Respondent did not follow protection guidelines for families affected by domestic violence; concerns that the Children were being exposed to intimate partner violence in their father’s home; a request for a personal support worker on all calls or meetings between the Applicant and the Respondent; and an indication that the Applicant would be calling MG’s supervisor.

41In further documents, the Applicant expressed to Respondent Counsel in an e-mail dated January 6, 2021 that she felt bullied and railroaded by the Respondent and wanted a support worker to be present on calls and meetings moving forward (page 0814). In an e-mail to MG on December 22, 2020 (page 0815), the Applicant’s indicated that she would be following up her concerns with MG’s supervisor to address her concerns with the investigation and into the child abuse disclosures of the Children; and the need for the Children to receive support in line with Ontario Guidelines; and her concerns that the Respondent has not fulfilled its duty to protect the Children. Page 0817 is an e-mail to the Supervisor from the Respondent reporting the Applicant’s concerns regarding the current investigation, including concerns with MG’s assessment and recommendations related to the allegations of abuse and harm.

42In providing the above-noted documents to the Court to assist the Court with context, the Applicant has ensured that the contents of the documents are subject matters that are before the Court. While it is true that the CLRA proceedings may not turn on the issues outlined in the Applicant’s Complaint, the Court has been provided with documents which addressed each of the concerns included in the Applicant’s Complaint.

43I cannot know what evidence will be considered and/or relied on by the Judge in deciding what is in the best interests of the Children. I also cannot know how the Children’s father will approach the evidence presented by the Applicant to the Court, including the evidence related to the issues in her Complaint. As such, I am reticent to make any findings of fact on issues that are or were before the Court.

44For these reasons, I find that the CFSRB is precluded from reviewing all the issues in the Applicant’s Complaint pursuant to section 120(8) of the Act.

45The Complaint is dismissed in its entirety.

CONFIDENTIALITY ORDER

46Pursuant 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.