TW v Children’s Aid Society of Toronto, 2021 CFSRB 79

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

TW

Applicant

-and-

Children’s Aid Society of Toronto

Respondent

DECISION

Adjudicator: Daniel McSweeney Date: November 12, 2021 Citation: 2021 CFSRB 79 Indexed As: TW v Children’s Aid Society of Toronto (CYFSA s.120)

WRITTEN SUBMISSIONS

TW, Applicant Self-Represented

Children’s Aid Society of Toronto Christina Siviero 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 section 120(4)4 of the Act. It is alleged 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 received.

3The Applicant is the mother of two boys (the “Children”).

4The Applicant identified the following Issues/Concerns in her Complaint:

1. The Applicant alleged that the Respondent failed to her concerns regarding the Respondent’s insistence that she and the Children had to relocate out of the residence shared by the Applicant and her fiancé;

2. The Applicant alleged that the Respondent’s actions have resulted in stress on her older son; and unnecessary physical examinations;

3. The Applicant alleged that the Respondent has failed to provide her with a plan to resolve the Respondent’s concerns;

4. The Applicant alleges that the Respondent has alienating the children from her fiancé based on threats to apprehend the Children if he sees them; and

5. The Applicant alleged that the Respondent has failed to hear her requests for supports so that she and her fiancé can improve their parenting and relationship skills.

5The Respondent submitted that the Applicant has had an opportunity to be heard throughout the current involvement and that the Respondent has satisfied the relief that she has sought in the Application.

6The issues related to the Applicant’s residence; access to and contact with the Children by the Applicant’s fiancé; are currently before the Court and are therefore outside the CFSRB’s jurisdiction pursuant to section 120(8)(a) of the Act.

7The Applicant provided the CFSRB with a Request for Review of Children’s Aid Society and Family Services Review Board Application dated October 7, 2021. The Request included a section related to the CFSRB’s jurisdiction to review her Application. The Applicant cited several concerns related to interactions with her current Family Service Worker. She alleged that several issues discussed such as service planning and access were not raised at Court and were not included in the conditions ordered by the Court. The Applicant requested disclosure of her full file.

8In a Case Management Direction (CMD) dated October 6, 2021, the Respondent was directed to provide the CFRSB with relevant Court documents, including any Court orders. The Applicant was given until October 22, 2021 to provide written submissions on the CFSRB’s jurisdiction to hear her Application, specifically identifying any aspect of the Application which is not before the Court.

9The Applicant did not provide any additional submissions outside those in the Request for Review of Children’s Aid Society and Family Services Review Board Application dated October 7, 2021.

THE LAW

10Section 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

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 considered the jurisdictional issues associated with the Application.

13Section 120(8) of the Act directs 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”.

14My 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 Respondent’s Protection Application filed with the Court on September 22, 2021 outlined the reasons for filing the Application which included concern for the level of adult conflict and domestic violence in the family home in the presence of the Children, and the impact this is having on the Children’s physical and emotional well-being. The Application recounts the events regarding several domestic violence incidents in July and August of 2021, and the issuance of no contact orders. It also addresses the Applicant’s older son’s concerns that the fights have made him scared and made him cry. Finally, the Application indicated that the Respondent has safety planned with the Applicant and has asked her to relocate to a shelter or her mother’s home and that she could not return to the home or relocate without the pre-approval of the Respondent. The Applicant and her fiancé have been advised to have no contact in the presence of the Children.

16The Court Application recommended that the Children be placed in the care and custody of their mother subject to supervision by the Respondent for 6 months with terms and conditions. The Respondent also sought access order to both fathers. The Appendix of the Application outlined conditions for Respondent worker access and interaction; residence; contact with the Applicant’s fiancé in the presence of the Children; consents to exchange information with service providers; attendance at various counselling programs; supports for the older son; and non use of physical discipline on the Children.

17A notice of Motion filed on September 15, 2021 included the conditions outlined above; as well as an order relating to access; access exchanges for the Children.

18The Affidavit by the Respondent Child Protection Worker sworn on September 15, 2021 indicated that the Children were medically assessed by the SCAN doctors.

19Finally, a Without Prejudice Temporary Supervision Order was endorsed by the Court in lines with the Notice of Motion.

20A review of the documents provided by the Respondent confirms that the Applicant’s concerns regarding the decision to place the Children under a Supervision order and to impose residence requirements; supervision and access requirements for the Applicant’s fiancé; and safety planning were placed squarely before the Court. The Court also had before it information on the impact that the witnessing of domestic violence by the Applicant’s eldest son and a plan to address this through programming, and the requirement for both Children to be assessed at the SCAN Clinic. The conditions for the Applicant and her fiancé also address supports and counselling required to address domestic violence and parenting issues.

21Given the documents presented by the Respondent, I find that all 5 of the Applicant’s Issues/Concerns were issues that were placed squarely before the Court. As such, I find that the CFSRB does not have jurisdiction to address these issues.

22I considered the Applicant’s submission that several issues discussed during safety planning were not raised at Court. I noted that the Applicant was represented by Counsel at Court. As such, the onus was on her and her Counsel to raise any concerns at Court.

23I considered whether any of the Issues/Concerns identified by the Applicant were separate and different from the substantive issues before the court. As outlined above, I found that all the Issues/Concerns in the Applicant addressed subjects that have been or are currently before the Court. As such I cannot find that the exception to section 120(8) in Children’s Aid Society of Waterloo v. DD applies to the Issues/Concerns identified by the Applicant.

DECISION

24For 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.

25The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

26Pursuant 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.