CK v. York Region Children’s Aid Society, 2021 CFSRB 6

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

CK

Applicant

-and-

York Region Children’s Aid Society

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: January 28, 2021

Citation: 2021 CFSRB 6

Indexed As: CK v York Region Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

CK, Applicant

Self-Represented

York Region Children’s Aid Society, Respondent

Joanna Harris, 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 a daughter and a son (“Children”). Both Children have different fathers. The Application alleged the following issues/concerns:

1. The Applicant alleges that the Respondent and its worker SK are biased against her which has resulted in harassment and discrimination, and threats by the Respondent to withhold access;

2. The Applicant would like an unbiased worker;

3. The Applicant alleges that the Respondent worker accused the Applicant of influencing her daughter to make false complaints;

4. The Applicant alleges that the Respondent has not heard the Applicant’s concerns about her daughter’s health and safety, especially around COVID protocols, alleged scars and rashes over her daughter’s body; lice; and dental issues; and the Worker has ignored the son’s concerns about his sister;

5. The Applicant alleges that the Respondent has failed to provide her a copy of her file for over a year;

6. The Applicant alleges that some of the notations, reports, and affidavits written by Respondent staff identify a bias against her;

7. The Applicant alleges that she had not been provided with reasons as to why the Respondent maintains that she has mental health concerns despite reports to the contrary;

8. The Respondent has failed to engage in an investigation of the Applicant’s concerns as part of the Internal Complaints Review Panel (ICRP) process; and

9. Respondent staff have not communicated with the Applicant and have not replied to the Applicant’s communications.

4The Respondent argued in its Summary Response 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 Respondent indicated that the Application lacked particulars and supporting documentation which were required for the Respondent to fairly respond to the Applicant’s allegations. The Respondent denied the service-related concerns identified by the Applicant.

5In a Case Management Direction (CMD) dated November 25, 2020, 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. The Respondent was reminded that Rule 21.2 of the CFSRB Rules of Procedure directs societies to provide documents and court orders in support of their section 120(8) argument.

6The Applicant did not provide submissions regarding the issue of jurisdiction. On December 4, 2020, the Applicant sent an e-mail to the CFSRB requesting the Respondent to send her the visitation plan and access workers’ reports as these documents were very important. The e-mail asked if the Applicant could respond to the CFSRB after receiving this disclosure. The Applicant was not provided with a response by the CFSRB. Given that the CMD focused on whether the CFSRB had jurisdiction to address issues that were before the Court, the disclosure of documents which addressed the merits of the complaint were not required in order for the Applicant to make submissions on the issue of jurisdiction.

7On December 7, 2020, the Respondent provided its submissions on jurisdiction. The submissions indicated that a Child Protection Application regarding the Children was launched by the Respondent on December 7, 2018. The Applicant has repeatedly raised concerns about the service and treatment she received. She has raised her concerns about the Children before the Court and the Court has made findings and decisions on these issues.

8The Respondent also included the following documents along with the submissions:

• Child Protection Application dated December 5, 2018

• Applicant’s Answer and Plan of Care dated January 8, 2019

• Applicant Motion for the return of the children dated July 2, 2019

• Affidavits from the Applicant, ML dated July 2, 2019; and July 18, 2019 in support of the Applicant’s Motion

• Court Endorsement dated July 23, 2019

• Settlement Conference Brief dated October 1, 2019

• Application for a Status Review dated October 13, 2020

THE LAW

9Section 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

10The 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).

11Rule 24.2 of the CFSRB Rules of Procedure allows for hearings to proceed in writing. Rule 8.1 provided guidance to CFSRB members on how to decide the format of a hearing.

ANALYSIS

12In analysing the Application, I focused on the CFSRB’s jurisdiction to review the complaint as it relates to section 120(8) of the Act; the CFSRB’s jurisdiction to address issues of inaccuracies in records; and whether the Respondent failed to investigate the Applicant’s ICRP complaint.

Jurisdiction in Relation to Part X of the [Act](https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html)

13The Applicant’s complaint highlighted issues of inaccuracies and bias in the Respondent’s records. In addition to being able to raise these issues in her answers before the Court, especially as they relate to bias in documents presented for the Court’s consideration, I note that issues related to inaccuracies in and disclosure related to records are addressed in Part X of the Act. As of January 1, 2020, the Office of the Information and Privacy Commissioner of Ontario is responsible for these issues. As such, the CFSRB does not have the jurisdiction to address Issues 5 and 6 in the Applicant’s complaint.

Jurisdiction in Relation to [Section 120(8)](https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html) of the [Act](https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html)

14I 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.

15The Applicant alleged that she was the victim of bias, discrimination and harassment by Respondent staff. I note that the Applicant has not provided specific examples of bias and discrimination. From the documents before me, it would seem that the Applicant’s conclusions of bias and discrimination stem from the Respondent’s actions and conclusions/decisions regarding custody, access, and the investigation of alleged treatment of the Children while in the care of their fathers. 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 and discrimination by 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.

16In addition, the subjective impressions of the Applicant regarding her interaction with the Respondent’s staff are issues which may need to be reviewed through the lens of the Applicant’s mental health diagnosis. The Court has had before it various mental health reports and is therefore in a better position to review the Applicant’s subjective impressions of her interaction with the Respondent and to make findings of fact in relation to the allegations of bias and discrimination and their impact on issues of child protection and the best interests of the Children.

17I note that a letter from MT dated April 11, 2019 appended to the Applicant’s affidavit speaks about the Applicant’s concerns related to a lack of respect from a CAS worker. As such, this issue has been before the Court.

18Based on the information before me, I find that issues related to bias and discrimination and the interaction between the Applicant and Respondent workers are issues which have been before the Court or are best decided by the Court as they relate to issues which are solely in the purview of the Court. As such, I find that the CFSRB is precluded from addressing Issues 1, 2, and 3 of the complaint.

19The Applicant alleged that the Respondent had not heard the Applicant’s concerns about her daughter’s physical and emotional health and safety. The evidence presented by the Respondent clearly indicates that the Applicant has had multiple opportunities to raise issues related to the health and safety of the Children before the Court.

20The Applicant’s affidavit dated July 2, 2019 outlined her concerns with her daughter’s health and safety while in the care of her father. These concerns included the daughter’s desire to return to her mother’s care; bruising; dermatological concerns; concerns that the Applicant’s daughter sleeps in the bed with another man when nobody is home; the amount of time that the father is away from home because of work; alienation of the daughter from her mother while in her father’s care; exposure to adult conflict in the home; and emotional harm. The affidavit also outlines the Applicant’s concerns for her son. The Affidavit also addressed the Respondent’s response to the Applicant’s reported concerns for her daughter.

21In addition, the letter from MT dated April 11, 2019 appended to the affidavit speaks about the Applicant’s concerns for her daughter including the alleged carelessness of her in-laws causing skin rashes; and inappropriate contact of her daughter by a male tenant, and a lack of respect from a CAS worker, and her former lawyer representative.

22The Applicant alleged that the Respondent has ignored her son’s concerns about his sister. I note that both Children have been represented by the Office of the Children’s Lawyer during the various proceedings. As such, the concerns of the son regarding his sister can be brought before and assessed by the Court.

23The issue of the Applicant’s daughter’s interaction with a male tenant who resided in the home was before the Court in through a Temporary Order dated May 17, 2019.

24The Settlement Conference Brief dated October 8, 2019 addressed the Applicant’s concerns regarding the dental health of her daughter as well as her concerns with her son’s weight gain.

25The Applicant raised concerns regarding her daughter being exposed to COVID. This issue can be raised before the Court in the context of access and custody discussions.

26Based on the variety of documents cited above, I find that the Applicant’s allegations related to the safety and health of her daughter, and her concerns with her son have been placed before the Court. As such, the CFSRB does not have jurisdiction to review Issue 4.

27The Applicant alleged that she was not provided with reasons as to the Respondent’s concerns regarding her mental health status. The issue of the Applicant’s mental health has been included in most of the documents presented before the Court. The initial Protection Application dated December 5, 2018 outlines the Respondent’s concerns regarding the evidence related to the Applicant’s mental health status and with the impact of her mental health and her ability to care for the Children. The Appendix orders the Applicant to complete a mental health assessment and comply with recommendations by the assessor, and to see a psychiatrist on an ongoing basis.

28In her Answer and Plan of Care dated January 8, 2019, the Applicant addressed allegations that she has a borderline personality disorder and confirmed that she had an adjustment disorder for which she intended to seek treatment. The Applicant confirmed in her Affidavit dated July 2, 2019 that she was diagnosed with an adjustment disorder, had difficulty regulating her emotions, and that the Respondent had concerns regarding her mental health. She discussed the expert evidence presented to the Respondent regarding her mental health. The Settlement Conference Brief dated October 8, 2019 focused on the Applicant’s mental health. The October 13, 2020 Status Review Application identified that the Respondent continued to have concerns with the Applicant’s mental health and her failure to address these concerns. The Application also cited the September 23, 2020 psychological assessment. The Applicant’s behaviour negatively impacted the Children during access visits.

29I find that the Applicant’s mental health and the Respondent’s position regarding why the Applicant’s mental health is of concern to the Children has been and continues to be an issue that is before the Court. As such, the CFRSB does not have jurisdiction to review Issue 7 in the complaint.

30The Applicant alleged that the Respondent did not communicate with her. In her Affidavit dated July 2, 2019, the Applicant addressed communication issues with the Society, including a request for a letter of expectations. In addition, the affidavit addresses the Respondent’s failure to respond to the Applicant’s counsel regarding access, the mental health assessment, and referrals to agencies/programs that would assist the Applicant in addressing the Respondent’s child protection concerns. The Applicant’s counsel did not receive a response to the letter.

31The affidavit also indicates that the Applicant’s counsel has requested updated disclosure from the Respondent to prepare for the motion, but that it has not been provided to the Applicant. In a letter dated April 10, 2019 and presented to the Court, the Applicant’s counsel requested full disclosure of the Applicant’s file be provided.

32The Applicant’s affidavit dated July 18, 2019 addressed issues of miscommunication and disagreement with the Respondent.

33The Endorsement by Justice Jarvis dated July 23, 2019 ordered the Respondent to provide ongoing disclosure to the Applicant.

34The Settlement Conference Brief dated October 8, 2019 addressed the failure of the Respondent to provide a letter with expectations to the Applicant in a timely fashion. The Brief also indicated that the Applicant had not received the assistance from Respondent workers to support her access to mental health and counselling programs. The Brief also outlined the Applicant’s concerns inaccuracies in the Settlement Conference Briefs presented to the Court.

35I note that the Respondent has indicated in its Summary Response that the Applicant sends multiple, and sometimes daily e-mails to the Respondent. The Respondent argued that it was not reasonably possible for it to respond continually and instantaneously with the Applicant.

36Given the documents cited above, I find that the issue of communication and challenges/barriers to communication between the Applicant and the Respondent have been addressed through various Court proceedings. As such, the CFSRB does not have jurisdiction to address Issue 9 in the complaint.

37I considered the Applicant’s allegation that the Respondent did not engage in an investigation of the Applicant’s concerns as part of the ICRP process. Given that I have the jurisdiction to decide issues in writing; given that this issue is fact based; given that I do not require any additional oral evidence to address this issue; and given that a written decision is the most efficient way to address this issue, I will decide this issue in writing in this decision.

38The Applicant has not provided evidence to the CFSRB that she had submitted a formal ICRP complaint to the Respondent. The Respondent has indicated that it has no record of an ICRP complaint. Given the lack of evidence provided by the Applicant, I cannot find that the Respondent has failed to investigate an ICRP complaint. As such, I dismiss Issue 8 in the Applicant’s complaint.

ORDER

39The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

40Pursuant 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.