ME v. Family and Children’s Services of the Waterloo Region, 2022 CFSRB 21

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

ME

Applicant

-and-

Family and Children’s Services of the Waterloo Region

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: April 05, 2022

Citation: 2022 CFSRB 21

Indexed As: ME v Family and Children’s Services of the Waterloo Region (CYFSA s.120)

WRITTEN SUBMISSIONS

ME, Applicant

Unrepresented

Family & Children’s Services of the Waterloo Region, Respondent

Jeffrey W. Boich, Counsel

INTRODUCTION AND BACKGROUND

1The Applicant filed an Application under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched. 1, (the “Act”).

2The Applicant is the mother of an adult daughter and a minor son (the “Children”).

3The Applicant identified the following Issues/Concerns in her Complaint:

1. The Applicant alleged that her concerns related to the placement of the Children with their father were not heard by Respondent staff;
2. The Applicant alleged that she was not heard by Respondent staff when she expressed concerns related to the health and safety of the Children while in the care of their father including related to safety planning;
3. The Applicant alleged that she was not heard by Respondent staff when she raised concerns regarding the physical health and medical treatment of her son;
4. The Applicant alleged that her concerns regarding the mental health of her son (PTSD) were not heard by Respondent staff;
5. The Applicant alleged that her concerns that the Children would be returned to Iran by their father were not heard by Respondent staff;
6. The Applicant alleged that Respondent staff did not hear her concerns related to allegations of abuse against her and the Children at the hands of her ex-husband; and
7. The Applicant alleged that Respondent staff called her “mental”.

ELIGIBILITY

4The Application is found eligible for review under section 120(4)4 of the Act: 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 is receiving.

5The many documents submitted by the Applicant outline concerns related to her interactions with the police; the health system; and the Family Court system. The CFSRB cannot review these concerns. The CFSRB only has jurisdiction under s. 120 of the Act to review the Applicant’s concerns with the services that she and her Children received from the Respondent. I have attempted to summarize these concerns in the 7 Issues/Concerns included in paragraph 3 above.

6In a Case Management Direction dated March 7, 2022, the parties were asked to provide submissions and documentation related to the CFSRB’s jurisdiction to review the Issues/Concerns in the Complaint.

7The Respondent submitted that it was aware that the Applicant is involved in an ongoing custody and access dispute at Court since at least 2016 which is scheduled for a trial beginning in April of 2022. The Respondent has not initiated any child protection proceedings.

8The Respondent attached an Endorsement by the Court dated March 20, 2018, which acknowledged that the Applicant made very serious allegations against the Children’s father that were not supported by evidence. The Respondent argued that the allegations in this Application mirrored the allegations made by the Applicant in the 2018 Court proceedings. The Applicant will have an opportunity to present her concerns and evidence during access and custody proceedings in April of 2022.

9Finally, the Respondent argued that the Applicant was provided with a full explanation for its decision making and that the Applicant was heard, and her input sought and respected throughout the Respondent’s involvement with her.

10The Applicant provided several documents and a statement all of which did not address the issue of jurisdiction. The document contained allegations related to the Children’s father and the treatment of the Children while in their father’s care; her son’s medical diagnosis and treatment; and makes reference to the Court’s actions/decisions in the past. The Applicant also submitted a report from a person WF regarding the Applicant’s allegations and experiences at Court. The report does not establish the author’s credentials.

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

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 documents provided by the Respondent in relation to the current Application and have found that the Issues/Concerns identified have been before the Court.

17The Endorsement by Justice James W. Sloan dated March 20, 2018, addressed the following issues:

• High level of post-separation conflict between the Applicant and her ex-husband

• Interim orders related to custody and access by the father, including supervised access requirements

• Serious allegations by each party alleged by each party and the lack of evidence and cross-examination regarding these allegations

• Restraining order against the father

• Court’s consideration of travel with the Children outside Canada, not including travel with the Applicant’s son to Iran

• The strained relationship between the Applicant and her daughter, including criminal charges of assault with a weapon against her mother, and conditions of her release, and her preference to live with her father

• Allegations that her daughter has been brainwashed by her father

• The Applicant’s daughter’s counselling

18From the Respondent’s submissions and the Endorsement document attached, it is clear that issues of custody and access between the Applicant and her ex-husband continue to be before the Court. The Court is the most appropriate forum for the Applicant to raise her concerns regarding the health and safety of the Children while in the care of their father. This includes the Applicant’s concerns regarding the physical and mental health of the Children. The Endorsement also clearly addresses the limitations on the Applicant’s son’s travel to Iran. The Applicant is free to address issues of the physical and mental health and safety of the Children while in the care of their father at Court.

19For these reasons, I find that Issues/Concerns 1-6 are issues that have been and are currently before the Court. The CFSRB owes deference to the Court, and therefore cannot and will not review issues 1-6 as these issues will be decided by the Court.

20The Applicant alleged that Respondent staff called her “mental” (Issue/Concern 7). The Respondent’s submissions did not address this issue. The Respondent did not address this issue in its submissions; however, the Report presented by the Applicant in her submissions had a section entitled “False Claims of Emotional Instability”. In this section, the author indicates that the Office of the Children’s Lawyer raised concerns about the Applicant’s mental stability. It goes on to state that the Child Investigator insinuated concerns with the Applicant’s mental health. The Endorsement indicated that the Office of the Children’s Lawyer (OCL) was ordered to complete an investigation.

21In its letter to the Applicant closing the file dated April 21, 2021, there is a brief mention of the Applicant’s mental health. The letter stated: “The caller questioned whether Maryam had underlying mental health issues based on their interactions with her.” The closing letter did not make any direct comment on the Applicant’s mental health or the impact that this may have on her ability to care for the Children.

22The Psychiatric Report from the Grand River Hospital attached to the Applicant’s submissions indicated that the Applicant’s husband has made allegations that she has mental health problems and that the Applicant’s lawyer requested a mental health report. Presumably, the report was shared with the Courts as it did not endorse any mental health diagnoses.

23Given that the Applicant’s evidence is that the OCL has investigated her mental health; given that the Court has ordered the OCL to complete its report; and given that the Applicant’s lawyer requested a mental health report, I find that the issue of the Applicant’s mental health is one that is before the Court as it focuses on the bests interests of the Children, which is an active issue in the custody and access proceedings. As such, the CSFSRB does not have jurisdiction to address this Issue/Concern.

24For the reasons outlined above, I find that all of the Applicant’s Issues/Concerns have been or will be before the Court. As such, the CFSRB does not have jurisdiction to review the Applicant’s Complaint.

25The Complaint 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.