ER v. Family and Children’s Services Niagara, 2022 CFSRB 20

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

ER Applicant

-and-

Family and Children’s Services Niagara Respondent

DECISION

Adjudicator: Daniel McSweeney Date: April 05, 2022 Citation: 2022 CFSRB 20 Indexed As: ER v Family and Children’s Services Niagara (CYFSA s.120)

WRITTEN SUBMISSIONS

ER, Applicant Unrepresented

Family and Children’s Services Niagara, Respondent Jason Farrer, Counsel

INTRODUCTION AND BACKGROUND

1The Applicant is the mother of one son (the “Child”) who had been residing in her care.

2This Application consists of the following complaints under sections 120(4) 4 and 120(4) 5 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1:

1. The Applicant alleges she was not provided reasons as to why the Child was apprehended by the Respondent without an investigation, and despite concerns with the warrant;
2. The Applicant alleges she was not provided reasons for the Respondent’s decision to place the Child for adoption;
3. The Applicant alleges that the Respondent did not hear her suggestions for kinship options;
4. The Applicant alleges that she was not provided with adequate access to the Child or that access was delayed or cancelled; and that sibling access was denied;
5. The Applicant alleges that her concerns around feeding the Child were not heard;
6. The Applicant alleges that the Respondent tried to have her, and her partner arrested for a non-contact order that did not exist;
7. The Applicant alleges that information in an Affidavit regarding her relationship with a convicted sex offender was false;
8. Applicant alleges that the Respondent lied regarding police officers’ refusal to supervise visits between the Child and his father;
9. The Applicant alleges that the Respondent has not provided her with answers as to how she can get the Child back;
10. The Applicant alleges that the Respondent has not provided her an explanation for why she could not have the Child returned if she lived with her mother;
11. The Applicant alleged that Respondent staff did not return her e-mails and phone calls, and will not meet with them regarding how to get the Child back;
12. The Applicant alleges that Respondent staff have disparaged her partner; and
13. The Applicant alleges that she was not informed that the Child was taken to hospital for X rays.

3At the Pre-Hearing, the parties agreed to mediation. The parties did not reach a settlement.

4At the Pre-Hearing, Counsel argued that many of the complaints identified above (Issues 1 – 10) are issues that have been before the Court or will be before the Court. As such, the CFSRB did not have jurisdiction to review these pursuant to s. 120(8) of the Act.

5Parties were asked to provide submissions and documents in response to 2 questions:

1. Are there any issues in the current Complaint that are not before the Court or have not been decided by the Court? Parties are asked to clearly identify any issues that are not before the Court.
2. Does the CFSRB have jurisdiction pursuant to s. 120(8)(a) to address the Issues/Concerns outlined in the Applicant’s Complaint?

6In its submissions, the Respondent argued that the issues related to child protection, the appropriate disposition of the child protection issues, and access are issues that were before the Court or will be before the Court and should be addressed through the Court. The next Court appearance is scheduled for April 21, 2022. The CFSRB is limited in its jurisdiction to address issues before the Court.

7The Respondent appended copies of the following documents to the submissions:

• Protection Application
• Affidavit from Worker SM
• Order placing the Child in the care and custody of the Respondent
• Affidavit from the Applicant in response to the Protection Application
• Court Endorsement dated November 30, 2021

8The Applicant provided detailed submissions on most of the 13 Issues/Concerns identified above. In the submissions, the Applicant requested that the CFSRB: “introject regarding our access, especially when it comes to Mr. Christie’s access”. In addition, she asked that the CFSRB make findings that the Respondent has disregarded the best interests of the Child. She requested the return of the Child to her care; and that the Respondent meet with her and the Child’s father to discuss family reunification. Finally, the Applicant asked that the Respondent amend false accusations included in an Affidavit submitted to the Courts.

9The Applicant also submitted several documents in support of her arguments.

10The Applicant’s submissions and documents did not address the issue of whether the CFSRB was precluded from reviewing the Issues/Concerns in the Complaint as they have been or are currently before the Court.

THE LAW

11Subsection 120(8) of the Act states:

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

Jurisdiction

13I considered whether the CFSRB is precluded from reviewing the Complaint as the Issues/Concerns in the Complaint are issues that are or have been before the Courts.

14With regard to the issue of the CFSRB’s jurisdiction, section120(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”.

15My 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.

16I have reviewed the submissions and documents provided by the Respondent and the Applicant in relation to the current Application and have found that Issues/Concerns 1, 2, 3, 5, and 7 have been before the Court.

17The Application for Child Protection dated November 2, 2021, addressed the following issues:

• The child protection involvement of the Applicant and the father of the Child
• The Applicant’s refusal to work cooperatively with Respondent staff
• Negative behaviours displayed by the Applicant and the Child’s father towards Respondent staff
• The reasons for the apprehension of the Child (father’s extensive and violent criminal history; Applicants admitted history of substance use; reported substance use of father; and father’s history of domestic violence; and Applicant’s history of domestic violence in previous relationships)
• The Applicant’s mother’s intention not to propose a kinship plan

18The Affidavit from Child Protection Worker SM presented to the Court on November 2, 2021, addressed the following issues:

• Historical involvement of both parents with the Respondent
• Applicant’s history of being subject to domestic violence
• Applicant’s use of substances and past concerns with her mental health
• The Applicant’s arrest for forcible entry
• The Applicant’s interactions with a registered sex offender
• The Applicant’s lack of cooperation with Respondent staff
• The apprehension of the Child based on a warrant
• The Applicant and the Child’s fathers escalating behaviour (yelling and screaming) while interacting with staff and in the presence of the Child
• Kinship options
• The Respondent’s rationale for apprehending the Child

19The Applicant’s Affidavit dated December 3, 2021, addressed the following:

• The accurate name of the Child
• Admissions of past intimate partner violence and substance misuse in the past
• Applicant’s history of counselling
• The Applicant’s ignorance of Mr. S’s criminal history as a sex offender
• Applicant’s refusal to pregnancy plan with Respondent staff
• The Applicant’s housing situation and efforts to obtain permanent housing
• The Applicant’s perspectives around the apprehension of the Child
• The Applicant’s position that she and the Child’s father were did not refuse to cooperate with Respondent staff, and did not display negative behaviours towards staff in the presence of the Child
• The Applicant’s concerns with the content and accuracy of the warrant used to apprehend the Child
• The Applicant’s concerns with access to the Child and ability to nurse the Child
• The Applicant’s desire that the Child be placed with a kin provider and not in foster care
• The Applicant’s concerns related to the investigation which resulted in the apprehension of the Child

20Based on the documents presented to the Court, I find that Issues/Concerns 1, 2, 3, 5, and 7 were issues that have been before the Court. The Court is better positioned to address these issues as it will be able to assess the totality of the evidence, including documentary evidence and testimony on these issues. As such, the CFSRB does not have jurisdiction to review these issues.

21Issue/Concern 4 deals with access. Access issues fall squarely within the purview of the Court. The Applicant will have an opportunity to raise any of her concerns with access at Court proceedings scheduled for April 21, 2022.

Disposition of Remaining Issues/Concerns

22I have found that the remaining Issues/Concerns (6, 8, 9, 10, 12, and 13) are not issues that have been or will be before the Court. As such, the CFSRB has the jurisdiction to review these Issues/Concerns.

23The 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.

24Given that the Applicant has provided detailed written submissions and documentation regarding most of the Issues/Concerns in her Complaint; and given the Respondent’s submissions and detailed summary response, I find that I have sufficient information before me to decide remaining Issues/Concerns in writing. This approach is the most efficient and expeditious approach to the Complaint. Finally, the issues are quite discreet, and I find that no additional testimony or evidence is required to address them.

25In Issue/Concern 6, the Applicant alleged that the Respondent tried to have her, and her partner arrested for a non-contact order that did not exist. This Issue/Concern did not allege that the Respondent failed to hear the Applicant on the particular issue or failed to provide the Applicant with an explanation for its actions. Nevertheless, the Applicant provided several General Occurrence Reports from the Regional Police along with her submissions. The Occurrence Report dated November 10, 2021, addressed the fact that the Applicant has a no contact order with her partner. The Report stated that the Applicant believed that the charges had been dropped and the conditions were no longer in place. The Applicant and her partner agreed to follow up with the Courts and their lawyer. The Respondent required Court documents before they would allow the Applicant and her partner to visit their son together.

26The evidence before me was that the Applicant was able to identify her concerns regarding the non-contact order with police and the Respondent and that the Respondent established conditions to the access visits based on their knowledge of the issue. As such, I find that the Applicant’s concerns with the non-contact order were heard by the Respondent and that the Respondent provided an explanation regarding access conditions as they related to the non-contact order.

27Issue/Concern 8 addressed the allegations that the Respondent staff falsified a report made by a police officer. The Applicant did not provide any evidence or submissions on this issue; therefore, I could not make a finding on this issue. Should the Applicant wish to have this issue addressed by the CFSRB, she is directed to provide additional evidence and documents to the CSFRB for consideration. I do note, however; if this issue related to statements made by the Respondent in documents presented to the Court, then the Court is the most appropriate forum to raise this Issue/Concern. I also note that issues of access generally fall outside the jurisdiction of the CFSRB as these are issues that are decided by the Court.

28In Issue/Concern 9 the Applicant alleged that she was not informed by Respondent staff how she could get the Child back. The Respondent indicated that the Applicant was provided with a letter dated November 18, 2021, which addressed this issue. The Applicant indicated she did not recall receiving the letter; however, a copy was received weeks later. Given this admission, I find that the Applicant has been provided with a written explanation by the Respondent regarding how she could get the Child back.

29In Issue/Concern 10, the Applicant alleged that the Respondent did not provide her with a reason as to why she could not have the Child returned to her if she lived with her mother. The Respondent indicated that the Applicant’s questions regarding her partner’s access to the Child; the reasons for the removal of the Child; the failure to have the Child returned to her or her partner; the Respondent’s failure to complete a risk assessment; and the Respondent’s failure to pursue kin options were responded to in writing in a letter dated January 4, 2022. The Respondent followed-up in the kinship option; however, the kin applicant informed the Respondent that they were not putting forward a kin plan. The Applicant was informed of this. The Applicant was also aware that another individual was also unable to put forward a kinship plan.

30Given the information provided by the Respondent, I find that the Applicant’s Issues/Concerns relating to kinship proposals, and why the Child could not be returned to her were heard by the Respondent and the Respondent provided the Applicant with written responses to these issues.

31In Issue 11, the Applicant alleged that Respondent staff did not return her e-mails and phone calls and would not meet with her to discuss access, sibling access, and how to get the Child back. In her submissions, the Applicant stated that she received reasons in March of 2022, but that staff have refused to meet with her regarding family reunification. In addition, there have been numerous occasions when calls were not returned. I note that the Applicant’s e-mails regarding the plan of care not being discussed with her were answered in a reply e-mail on January 28, 2022. Furthermore, the Applicant sent the Respondent an e-mail requesting what she needed to do to have the Child returned to her. This question was addressed in detail in a reply e-mail dated February 15, 2022.

32In a letter to the Applicant’s Counsel dated February 15, 2022, the Respondent indicated that it did not oppose sibling contact; however, it was concerned about the Applicant’s partner’s presence during sibling contact. In a letter to the Applicant and to the Child’s father dated February 15, 2022, the Respondent reiterated that it did not oppose sibling access; however, it would not consent to the Child’s father being present, and that the Applicant should not engage in conflict during the access visit. Attempts to have the Child’s father sign releases and to speak with staff on February 14, 2022, were unsuccessful.

33The Applicant spoke with the Respondent about sibling access and presented the Respondent with a plan for this to occur at her mother’s home. The Applicant was advised in an e-mail dated February 14, 2022, that a letter had been written and would be mailed to the Applicant and her lawyer.

34The Applicant has had an opportunity to voice her concerns in person and through e-mail with the Respondent. Respondent staff have provided the Applicant with letters and e-mails in response to her various queries. In this case, I find that the Applicant has been provided with responses that she disagrees with, but this does not mean that Respondent staff have failed to hear her and have failed to provide her with reasons for their actions.

35In Issue 12, the Applicant indicated that Respondent staff have disparaged her partner. The submissions indicate that she had received an e-mail from the Respondent’s lawyer indicating that her partner had acted aggressively and in a threatening manner to Respondent staff. The Applicant’s partner does not recall speaking to Respondent staff on specific dates. The Applicant alleged that she was asked by a staff member why she was defending her partner.

36I note from the documents before me that the Applicant’s partner has had a fractious relationship with Respondent staff and that he has been aggressive, abusive, and volatile with staff resulting in most telephone conversations being terminated by Respondent staff.

37It is clear to me that Respondent staff have identified the negative behaviours associated with the Applicant and her partner, have commented on these behaviours (including at Court), and have placed limits on the Applicant and her partner associated with these negative behaviours. Both the Applicant and her partner have been made aware of the Respondent’s concerns with their behaviour, including through documents presented at Court.

38There is no evidence before me alleging that the Applicant has expressed concerns to Respondent staff regarding disparaging remarks or their characterization of her partner. As such, I find that the Applicant’s concerns related to this issue do not fall within the parameters of section 120(4) 4 or 120(4) 5. As such, the CFSRB does not have jurisdiction to address this issue.

39Issue 13 deals with the Applicant not being informed that the Child had been taken to the hospital and underwent X-rays. The Applicant was only informed of this at the 3-month check-in meeting. The Applicant sent the Respondent an e-mail on January 28, 2022, requesting an explanation as to why she was not informed about the Child undergoing an X-ray. The Respondent indicated that this question was answered in detail in an e-mail dated January 28, 2022. As such, I find that the Applicant was provided with an explanation for this concern.

Summary and Direction

40For the reasons outlined above, I find that Issues/Concerns 1, 2, 3, 4, 5, and 7 have been or will be before the Court. As such, the CFSRB does not have jurisdiction to review these Issues/Concerns.

41I had before me sufficient evidence to find that the Applicant has been heard, and/or provided with reasons for the Respondent’s actions as they relate to Issues/Concerns 6, 9, 10, 12, and 13.

42The Applicant may wish to provide additional evidence in support of her assertion that the Respondent lied about police officers’ refusal to supervise access visits; however, if this issue relates to documents presented to the Court or relates strictly to the issue of access, then CFSRB does not have the jurisdiction to address this issue.

43For the reasons outlined above, all the Issues/Concerns, with the possible exception of Issue/Concern 8, are dismissed in their entirety.

44If she wishes to pursue Issue/Concern 8, the Applicant is directed to provide evidence and submissions in regard to this Issue/Concern to the CFSRB and the Respondent on or before April 15, 2022. The Respondent will submit its response to the Issue/Concern on or before April 25, 2022. If the CFSRB does not hear back from the Applicant by April 15, 2022, the Application will be considered closed.

CONFIDENTIALITY ORDER

45Pursuant 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.