CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
LW
Applicant
-and-
Family and Children’s Services of the Waterloo Region
Respondent
DECISION
Adjudicator: Daniel McSweeney
Indexed As: LW v Family and Children’s Services of the Waterloo Region (CYFSA s.120)
WRITTEN SUBMISSIONS
LW, Applicant
Self-Represented
Family and Children’s Services of the Waterloo Region, Respondent
Eric R. Smith, 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 section120(4)5 of the Act. It is alleged that the Respondent has failed to provide the Applicant with reasons for a decision that affected her interests.
3The Applicant is the foster parent to a child born in 2018 (the “Child”). The Child has been identified as Métis.
4The Applicant identified the following Issues/Concerns in her Complaint:
The Applicant alleged that the Respondent failed to provide her with reasons as to why it did not follow its policy to arrange for a permanency plan for the Child after one year;
The Applicant alleged that she was not provided with an explanation regarding the “missing information” required to finalize the adoption documents;
The Applicant alleged that the Respondent has not provided her with reasons as to why the Child will be returned to her mother’s home despite concerns regarding her other siblings;
The Applicant alleged that the Respondent has not provided her with reasons as to why it would be in the best interests of the Child to move her from the only home she knows into the home of her mother.
5In their Summary Response, the Respondent argued that the CFSRB did not have jurisdiction to review the Applicant’s Complaint as it dealt with matters that are or have been before the Court. The Applicant acknowledged that the matter is before the Court at Section 10 of her Application. The matter has been adjourned to November 9, 2021. The Respondent has asked the Court for an order to return the Child to her biological mother.
6In the alternative, the Respondent argued that its staff provided the Applicant with an explanation for its decisions in relation to returning the Child to her birth mother.
7In a Case Management Direction dated August 37, 2021, the Respondent was directed to provide the CFSRB with relevant Court documents, including Court Orders. On or before September 20, 2021, the Applicant was directed to provide written submissions on the CFSRB’s jurisdiction to review the Complaint.
8The Applicant’s submissions reiterated the allegations included in her Application. The submissions did not address the issue of jurisdiction and whether any or all the issues in the Applicant had been or are currently before the Court.
THE LAW
9Section 120(8) of the Act 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
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).
ANALYSIS
11I turned my mind to whether the CFSRB had jurisdiction to review the Issues in the Complaint pursuant to section 120(8) of the Act.
12Section 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.
13The Respondent provided a variety of Court documents including: Application for Status Review; Notices of Motion; Affidavits; Plan of Care; Final Protection Order; and Endorsements involving the Child. The documents affirm that the Applicant has a Respondent in the proceedings and is entitled to Notice.
14In the Status Review the Judge will be asked to decide which action is in the best interests of the Child. Both the Respondent and Applicant have a right to provide evidence and arguments in support of their positions on best interests.
15In the Status Review Application, the Respondent has outlined its position and has discussed the evidence in support of why the Child should be returned to her mother. For these reasons, I find that Issues/Concerns 3 and 4 have been placed squarely before the Court and will be returned to Court in November of 2021.
16With respect to Issue/Concern 1 (the Respondent not following its timelines), I find that these issues have been addressed in the documents provided to the Court. The Court documents clearly explain the impact that Bill C-92 has had on the Child’s case. The Court documents explain the importance of family reunification in addressing the wrongs of the past and in providing Indigenous families with an opportunity for healing.
17The Court documents also outline other issues which have delayed decision-making in relation to permanency planning for the Child such as: openness applications; need to locate the Child’s father; need to assess the mother’s plan; involvement of the Office of the Children’s Lawyer; access issues; and the impact of COVID on all Court proceedings. For these reasons, the issue of the timeliness of the Respondent’s decision-making and processes related to permanency planning for the Child have been placed before the Court.
18I considered Issue 2 (missing information). This Issue relates to the finalization of permanency plans for the Child. As outlined above, the Respondent’s reasons for its permanency proposal; the impact of Bill C-92; and the timing of the permanency proposal have been and are currently before the Court. Should the Applicant have any questions about missing information which the Respondent alleged in its e-mail of June 8, 2020, she is free to address this at Court.
19Despite this finding, I find that, in its Summary Response, the Respondent has provided the Applicant with an explanation regarding this Issue. For example, CPIN Note dated June 19, 2020 sent from Jessica Cragg to the Applicant indicated that: “I have been informed that there needs to be some more consultation with upper management before the children can be placed on adoption”. The CPIN Note dated July 22, 2020 by Debora Bowler-Sprague states: “Let he know that we are working through the process of how to manage the C92 law and reassessing our cases to ensure that we have met the requirements of this new law…Due to ongoing changes to case practice we at times need to review and revisit past decision [sic] and practices to make sure they meet the best interest and needs of the children”. It is clear that the missing information related to the impacts of Bill 92 on the Respondent’s decision-making in relation to the permanency plans for the Child.
20The Applicant did not argue, and I did not find that any of the Issues/Concerns in the Applicant’s Complaint were distinct from issues that were before or are currently before the Court. As such, I find that the exception in Children’s Aid Society of Waterloo v. DD does not apply to this Complaint.
DECISION
21For the reasons identified above, I find that all the Issues/Concerns in the Applicant’s Complaint have been and/or are currently before the Court. As such, the CFSRB does not have jurisdiction to review the Issues/Concerns pursuant to section 120(8) of the Act.
22The Complaint is dismissed in its entirety.
CONFIDENTIALITY ORDER
23Pursuant 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.
Dated at Toronto, September 22, 2021.
Daniel McSweeney
Daniel McSweeney
Member