AMS v. Durham Children’s Aid Society, 2021 CFSRB 77

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AMS Applicant

-and-

Durham Children’s Aid Society Respondent

DECISION

Adjudicator: Daniel McSweeney Date: November 8, 2021 Citation: 2021 CFSRB 77 Indexed As: AMS v Durham Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

AMS, Applicant Self-Represented

Durham Children’s Aid, Respondent Jodi Potts, Privacy Lead

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 Respondent is alleged not to have given the Applicant 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; and the Respondent is alleged to have failed to provide the Applicant with reasons for decisions that affected her interests.

3The Applicant is mother of one boy (the “Child”). The Application outlined the following issues:

1. The Respondent did not follow-up on her referral of alleged child abuse by the Child’s father;
2. The Respondent failed to follow-up on the Applicant’s concerns that the Child’s father’s partner (who she alleges is a child youth worker with the Respondent) did not report the alleged child abuse of the Child; and
3. The Respondent failed to follow-up on the Applicant’s concerns related to the father’s partner’s involvement in the care of the Child.

4In its reply to the Application, the Respondent argued that it had no clinical interactions with the Applicant and has not prescribed any services to the Applicant or her family. The active child welfare investigation is being conducted by and within the Toronto Children’s Aid Society.

5The Applicant and the Child’s father are currently involved in a non child welfare custody and access dispute. The Respondent is not involved in these Court proceedings. The Respondent appended an Affidavit sworn by the Applicant and presented to the Court which addressed her concerns with the Respondent staff member as well as her concerns regarding access to the Child.

6The Respondent argued that the interactions between the Applicant, the Child and the father’s partner were not within her duties or time as a Respondent staff member and occurred during her personal time.

7For these reasons, the Respondent argued that the CFSRB does not have jurisdiction to address the Applicant’s complaint as the Applicant is not in receipt of services from the Respondent.

8In a Case Management Direction (CMD) dated October 22, 2021, the Applicant was directed to explain what services she sought or received from the Respondent on or before November 1, 2021. The Applicant provided an e-mail regarding the CMD which reiterated her concerns with the Respondent staff member. It did not address the issue of whether the Applicant and/or son were in receipt of services of the Respondent.

THE LAW

9Section 120 (1) of the Act provides that, if a person has “a complaint in respect of a service sought or received from a society [and the complaint] relates to a matter described in subsection (4), the person who sought or received the service may decide” to make a complaint to either the society or the CFSRB.

10The Act defines “service” as follows:

a) a service for a child with a developmental or physical disability or the child’s family b) a mental health service for a child or the child’s family, c) a service related to residential care for a child, d) a service for a child who is or may be in need of protection or the child’s family, e) a service related to adoption for a child, the child’s family or others, f) counselling for a child or the child’s family, g) a service for a child or the child’s family that is in the nature of support or prevention and that is provided in the community, h) a service or program for or on behalf of a young person for the purpose of the Youth Criminal Justice Act (Canada) or the Provincial Offences Act, or i) a prescribed service; (‘service’).

11Section 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

12The 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

13In analyzing this complaint, I focused on whether the Applicant was in receipt of services from the Respondent.

14The Respondent has confirmed that the Applicant and her son are not in receipt of service. The child welfare investigation has been undertaken by the Children’s Aid Society of Toronto who would be considered the service provider in this case.

15The Applicant has not identified any additional services she or her son have received from the Respondent.

16Based on the evidence before me, I find the Applicant has not received services from the Respondent. As such, the CFSRB is precluded from reviewing her service complaint pursuant to sections 119 and 120 of the Act.

17Furthermore, even if the Applicant would have demonstrated that she was in receipt of services, I find that there is sufficient evidence before me that the Applicant’s concerns regarding the father’s partner and access to the father’s home are issues that are currently before the Court as per the Applicant’s affidavit. The CFSRB is precluded from reviewing issues which have been or are currently before the Court.

SUMMARY

18Given the Applicant and/or her son are or have not been in receipt of services from the Respondent, the CFSRB is precluded from reviewing the Application pursuant to sections 119 and 120 of the Act.

ORDER

19For the reasons outlined above, the Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

20Pursuant 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.