RB v Dufferin Child and Family Services, 2021 CFSRB 86

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

RB Applicant

-and-

Dufferin Child and Family Services Respondent

DECISION

Adjudicator: Daniel McSweeney Date: December 06, 2021 Citation: 2021 CFSRB 86 Indexed As: RB v Dufferin Child and Family Services (CYFSA s.120)

WRITTEN SUBMISSIONS

Dufferin Child and Family Services Kathleen O’Grady, 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 sections 120(4)4 and 120(4)5 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. It is also alleged that the Society has failed to provide the Applicant with reasons for a decision that affected her interests.

3The Applicant is the biological mother of 3 children (the “Children”) who are no longer in her care and custody.

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

1. The Applicant alleged that she was not provided with reasons for the apprehension of her 3 Children;
2. The Applicant alleged that the Respondent did not hear her concerns that the Children were being abused in their foster care placements, and refused to confirm the abuse;
3. The Applicant alleged that the Respondent staff disregarded the progress that she had made regarding her parenting and mental health;
4. The Applicant alleged that she was not being kept informed by Respondent staff regarding her eldest son’s mental health and schooling issues; and the Children’s medical treatment; and
5. The Applicant alleged that she was not informed of the complaint process by the Respondent.

5In its Summary Response, the Respondent argued that staff worked with the Applicant, maintained regular communication with her, heard her concerns, and provided her with appropriate reasons for its actions and decisions. The Respondent argued that the Applicant was dissatisfied with the Court’s ultimate determination in relation to the Children and felt that her perspective was not considered or heard by the Respondent and the Court.

6The Respondent appended to its Summary Response the Reasons for Judgement of Mr. Justice Clay which included his final Orders. The Respondent also provided a copy of the Parental Capacity Assessment that was before the Court.

7The Respondent argued that the Application should be dismissed in its entirety pursuant to section 120 (7)(e) of the Act.

8In a Case Management Direction (CMD) dated November 9, 2021, parties were directed to provide submissions on the issue of jurisdiction and the format of the hearing.

9In its response to the CMD, the Respondent argued that the CFSRB is precluded form addressing the Complaint as the issues identified in the Complaint were addressed by the Ontario Court of Justice. The Applicant was represented by Legal Counsel throughout the proceedings, and the eldest Child also had Legal Counsel. The Applicant is dissatisfied with the Court’s determination in the child protection proceedings and was attempting to use the CFSRB process as an appeal venue for which the CFSRB has no jurisdiction. The Respondent argued that the Complaint should be dismissed in its entirety.

10The Respondent did not provide submissions on the format of the hearing.

11The Applicant did not provide submissions as per the CMD.

THE LAW

12Section 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

13The 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).

14The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or video-conference. Subsection 8.1 of the Rules state:

In deciding the format of a hearing, the CFSRB will consider:

a) whether it is a fair and accessible process for the parties; b) the costs and efficiency of the process; c) the potential for a more expeditious resolution; d) the convenience of the parties; e) the consistency with the CFSRB’s mandate; f) whether the facts or evidence may be agreed upon; g) the estimated duration of the hearing; h) whether the issues for hearing are predominantly legal issues; i) whether oral testimony is likely to be needed; j) any objections to the format of the hearing.

ANALYSIS

15Firstly, with respect to the format of the hearing, neither party provided submissions on this issue. I note that several of the Issues/Concerns deal with jurisdictional issues which I find are narrow and legal in scope and which can be most efficiently decided through a written hearing.

16Secondly, the only issue which was not jurisdictional in content dealt with the Applicant’s allegations that she was not informed of her right to complain. Neither party made submissions on this issue. As noted below, I find that this issue is sufficiently narrow and therefore I was able to decide it on the documents which were before me.

17I considered the jurisdictional issues associated with the Complaint.

18Section 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”.

19My 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.

20The Respondent appended the following documents to its initial Response and its Submissions on jurisdiction:

• Child Protection Application, September 14, 2012
• Affidavit from Child Protection Worker JM, September 14, 2012
• Parenting Capacity Assessment, July 23, 2013
• Status Review Application, June 15, 2015
• Affidavit of Child Protection Worker ST, June 15, 2015
• Temporary and Final Court Orders regarding the status of the Children
• Affidavit of Child Protection Worker ST, August 25, 2016
• Reasons for Judgement, October 20, 2016

21The Child Protection Application and accompanying affidavits clearly outlined the reasons for the apprehension of the Applicant’s 3 Children; made reference to the Applicant’s mental health status and supports for her mental health and parenting; and discussed the developmental and learning concerns related to the Applicant’s Children.

22The Status Review Application and Affidavit of Child Protection Worker ST; addressed issues of custody and access regarding all 3 Children; placement of the 3 Children in foster care; the Applicant’s mental health status, including periods of improvement; LL’s behaviour and performance at school; his mental health, and special needs; the reasons for apprehending the two younger Children; the Applicant’s relationship with her eldest son; and the need for permanency planning for the youngest 2 Children.

23The Affidavit of ST from August 2016 addressed issues related to the custody, access; the Applicant’s mental health; CB’s mental health and behavioural concerns; his experiences at school ; and care of CB while in the custody of his maternal grandparents. The Affidavit also spoke of the results of a Parenting Capacity Assessment completed and presented to the Court on July 23, 2013 which addressed the Applicant’s mental health.

24The Reasons for Judgement by Justice Philip J. Clay addressed issues of custody and access for all the Children. It provided an overview of the child welfare issues and decisions and discussed the evidence presented by the Respondent; the Applicant; the Applicant’s parents regarding issues of access and custody of CB; and the Office of the Children’s Lawyer’s evidence regarding CB.

25It is clear from the documents presented before the Court that the rationale for the apprehension of the Children; the Applicant’s mental health status over time; CB’s mental health and behavioural issues; and issues of custody and access were placed squarely before the Court. As such, the CFSRB does not have jurisdiction to address Issues/Concerns 1 and 3.

26The Applicant is subject to custody and access Orders for all her Children. Issues of access to medical and schooling records were issues that should have been brought up in the Applicant’s evidence, especially before Justice Clay in the proceedings of September 22, 2016 which led to the final Orders related to the Children. As such, I find that Issue/Concern 4 was an issue that was before the Court and the CFSRB does not have jurisdiction to address this issue.

27The Applicant was represented by Counsel throughout the various proceedings. If she had concerns regarding the treatment of the Children while in foster care, it was open to her to argue these concerns before the Court. As such, the CFSRB does not have jurisdiction to address Issue/Concern 2.

28I 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 Issues/Concerns 1, 2, 3, and 4 raised by the Applicant were issues that were raised 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 1 – 4 identified by the Applicant.

29I considered the Applicant’s Concern that Respondent staff did not inform her of the CFSRB complaint process. This is a very simple issue of fact that can be addressed in writing.

30The Applicant indicated in her Application that she was not informed of the CFSRB when she made complaints to Respondent staff.

31The Respondent argued that staff met with the Applicant on a weekly basis for many years. The Applicant voiced her concerns to staff, including to a Manager. The Respondent indicated that there were brochures and posters about the Complaints Procedure in the lobby. In addition, the Applicant was represented by Counsel throughout the various child protection proceedings.

32I find that there is no legal onus on the Respondent to inform a service user of the right to complain to the CFSRB. Ontario Regulation 156/18 which addresses formal complaints does not speak to the issue of a society’s duty to promote the formal complaint process. The Applicant has had multiple opportunities to express her concerns to frontline workers and management. In addition, she has been able to argue her concerns during various Court proceedings.

33As such, I dismiss Issue/Concern 5 as there is no onus on the Respondent to promote service complaints to the CFSRB (unlike appeals under sections 109 and 192 of the Act) and the Applicant has had multiple opportunities to express her concerns with the Respondent in various fora, including at Court.

DECISION

34For the reasons identified above, I find that all the Issues/Concerns 1 – 4 in the Applicant’s Complaint have been and/or are currently before the Court. As such, the CFSRB does not have jurisdiction to review these Issues/Concerns pursuant to section 120(8) of the Act. Issue 5 has also been dismissed as there is no legal onus on the Respondent to promote the existence of the CFSRB’s service complaints process.

35The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

36Pursuant 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.