GP v. Family and Children’s Services of St. Thomas and Elgin, 2021 CFSRB 88

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

GP

Applicant

-and-

Family and Children’s Services of St. Tomas and Elgin

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: December 10, 2021

Citation: 2021 CFSRB 88

Indexed As: GP v Family and Children’s Services of St. Tomas and Elgin

(CYFSA s.120)

WRITTEN SUBMISSIONS

Family and Children’s Services of St. Thomas and Elgin

Dana Haklander,

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 Application was found eligible for review under section 120(4) 5 of the Act: The Society is alleged to have failed to provide the Applicant with reasons for a decision that affects her interests.

3The Applicant is the kin caregiver of a boy (the “Child”).

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

1. The Respondent has not heard the Applicant’s concerns regarding the safety and care of the Child while with his father;
2. The Respondent has failed to hear the Applicant’s concerns of violence, criminality, and threats by the Child’s father;
3. The Applicant alleged that the Respondent failed to provide her with a report/information regarding access visits between the Child and his father;
4. The Respondent has failed to hear the Applicant’s concerns with the Child’s ‘nana’;
5. The Respondent has failed to hear the Applicant’s concerns with the Child’s father’s comments regarding the Child’s undiagnosed autistic behaviours;
6. The Respondent has failed to hear the Applicant’s concerns with issues related to access and the impact of access visits have had on the Child’s behaviour; and
7. The Respondent has ignored Jordan’s Principle in relation to the Child.

5In its Summary Response, the Respondent argued that CFSRB did not have jurisdiction to review the Application as the Issues/Concerns identified by the Applicant are before the Court. The Respondent commenced a Status Review Application and has received a Temporary Order in relation to the placement, custody, access, level of supervision, and parenting of the Child. The Applicant has brought forth a Motion to be added as a full party to the Status Review Application. The Motion was contested and has been adjourned until December 9, 2021. In addition, the Applicant’s Counsel requested that the Court freeze the Respondent’s discretion with respect to access/parenting time. This request was denied by the Court.

6The Respondent indicated that, if the Applicant is added as a party, she will be able to adduce evidence and express her concerns to the Court in regard to access, supervision, and custody issues.

7In the Summary Reply, the Respondent also argued that the Applicant has been provided with reasons for its decisions through Status Review Application proceeding. The Applicant is not yet a party and is prematurely fishing for information prior to being eligible to receive information. The Applicant has had ongoing communication with a Kinship Worker and has received written replies to her concerns from various Respondent staff.

8The Respondent argued that the CFSRB is precluded from reviewing the Issues/Concerns in the Application pursuant to section 120(8) of the Act.

9The Respondent appended to its Summary Response an Endorsement Sheet (October 21, 2021) and a Temporary Order (February 18, 2021).

10In a Case Management Direction (CMD) dated November 9, 2021, parties were directed to provide submissions on the issue of jurisdiction. The Applicant was also informed that the CFSRB will not consider any documents on the merits of the Application until after the issue of jurisdiction is decided.

11In its response to the CMD, the Respondent argued that the CFSRB is precluded from addressing the Complaint as the issues identified in the Complaint are issues that have been before the Court and continue to be before the Court in relation to a Child Protection Application; Status Review Application; and a Status Review Hearing. The Applicant’s complaints focus on the father’s mental health, criminal activity, and parenting, and the allegations that Respondent staff have not assessed the issue of risk and taken into consideration the Applicant’s concerns. The issue of whether the Child is in continued need of protection is before the Court on the Status Review Hearing.

12The Applicant is a party to the Status Review Application. Issues related to the father’s history towards the Child and the Applicant’s concerns regarding the Child; Respondent staff’s assessment of risk; and the current parenting time scheme related to the Child’s father; can be argued by the Applicant if the Court approves of the Applicant’s motion for status. Regardless of the Applicant’s status, the Court is obliged to determine if the Child is in continued need for protection. The issues in the Application are currently before the Court and the exception outlined in Children’s Aid Society of Waterloo v. DD does not apply to the complaint.

13The Applicant did not provide submissions on the issue of jurisdiction pursuant to the CMD dated November 9, 2021. I note; however, that the Applicant had submitted an e-mail response to the Respondent’s Summary Reply. I reviewed the Applicant’s e-mail to determine if she addressed the issue of jurisdiction. The e-mail commented on the following issues that were before the Court: The Applicant’s temporary care and custody of the Child; the Applicant’s motion; and unsupervised access by the Child’s father. The e-mail; however, did not address whether the CFSRB had the jurisdiction to address the Issues/Concerns identified by the Applicant in her Complaint.

THE LAW

14Section 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

15The 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

16I considered the jurisdictional issues associated with the Complaint.

17Section 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”.

18My 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.

19The Respondent attached the following documents to its initial Response and its Submissions on jurisdiction:

• Endorsement by Justice Tobin of the Superior Court dated October 21, 2021; and
• Temporary Order by Justice T. Price dated February 18, 2021

20The Respondent also attached a series of e-mails between the Applicant and Respondent staff; however, it is unknown whether these communications were submitted to the Court.

21The Endorsement of October 21, 2021 addressed issues related to parenting time and access between the Child and the parents, particularly the father. The Endorsement indicated that the Respondent has discretion with respect to access; however, the Respondent was directed not to take any precipitous actions in the short-term until the Motion could be heard.

22The Temporary Order addressed the placement of the Child with the Applicant subject to supervision by the Respondent. It also commented on the conditions placed on both parents by the Respondent including unscheduled access and cooperation with Respondent staff; use of alcohol or illegal substances while in a caretaking role; use of positive parenting strategies; use of approved caregivers; consideration of parenting education; addictions and mental health counselling for the mother; the role of the Applicant in supporting the Child; supervised access to the Child by his father and mother; and the potential for virtual access visits.

23It is clear from the documents before me that issues related to the custody and access to the Child (including those related to the Child’s father and grandmother); and the Respondent’s role and responsibility in relation to these issues were and are clearly before the Court. In fact, the Applicant, through her Counsel has sought to freeze the Respondent’s right to use their discretion with respect to access and parenting time. The Motion was refused by the Court.

24The Applicant is concerned for the safety and health of the Child during access with his father and grandmother. I concur with the Respondent that any decision regarding access and custody by the Court will consider the continuing best interests of the child through the Status Review Application that is currently before the Court. This will necessarily involve an assessment of any risks the Child may face while with his father and grandmother. I find that the Applicant’s concerns are issues that are currently before the Court and will be decided in future proceedings before the Court.

25As such, I find that Issues/Concerns 1, 2, 4, 5, and 6 are issues that are before the Court or have been decided by the Court. The CFSRB does not have jurisdiction to address these issues.

26The Applicant has sought to be added as a party at Court and has been involved in the Court proceedings as an observer. The Respondent has not opposed this participation. Despite this, I concur with the Respondent that the Applicant is not entitled to disclosure and access to the personal information held by the Respondent until she is made a party by the Court. As such, the CFSRB does not have the jurisdiction to address Issue/Concern 3, as this deals with disclosure of personal information which is within the purview of the Office of the Information and Privacy Commissioner, and issues of disclosure may be addressed through the Court.

27The Applicant raised Jordan’s Principle in Issue/Concern 7. I have reviewed the Court documents, the Application Form, and the correspondence on the file and cannot find any confirmation of the Child having Indigenous Identity. There is no band or First Nations involvement in the case and a request for the involvement of a particular indigenous community was not identified in the Application before me. Notably, the Application Form specifically asks applicants if they identify as indigenous. In addition, the Summary Response states:

“The Respondent mother has made some general statements that she has some First Nation heritage on her side. Very little information was provided, individuals who might know more never responded to the Society’s inquiries about this possible heritage.”

28Given the lack of confirmation of the Child’s Indigenous heritage by the Applicant, the Courts, and the Society, I must dismiss this Issue/Concern in the Complaint as I do not have sufficient evidence to decide whether Jordan’s Principle applies to the Application. The Applicant is free to raise the issue of the Child’s Indigenous identity should she be granted party status by the Court.

29I 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, 4, 5 and 6 identified 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, 2, 4, 5, and 6 identified by the Applicant.

DECISION

30For the reasons identified above, I find that all the Issues/Concerns 1, 2, 4, 5, and 6 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 3 falls outside the CFSRB’s jurisdiction. Finally, the CFSRB has not been provided with sufficient evidence to persuade it that Jordan’s Principle applies to the Application.

31The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

32Pursuant 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.