CHILD AND FAMILY SERVICES
REVIEW BOARD
BETWEEN:
MM
Applicant
-and-
Children’s Aid Society of Algoma
Respondent
DECISION
Adjudicator: Daniel McSweeney
Indexed As: MM v Children’s Aid Society of Algoma (CYFSA s.120)
WRITTEN SUBMISSIONS
MM, Applicant
Unrepresented
Children’s Aid Society of Algoma, Respondent
Dawn V. Dubois,
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 Application 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 he/she is receiving; and the Society is alleged to have failed to provide the Applicant with reasons for a decision that affects her interests.
3The Application refers to the involvement of the Respondent in relation to access and services associated with her son AMM (the “Child”).
4The Applicant identified the following Issues/Concerns in her Application:
The Applicant alleged that her concerns regarding denial of access to her son by the Respondent (including make-up access) and her concerns about the limiting of access to 6 hours have not been heard by the Respondent;
The Applicant alleged that she has not been provided with reasons by the Respondent for her limited access to her son;
The Applicant alleged that Respondent staff have not heard her fears that her limited access is detrimental to the development of her son;
The Applicant alleged that she was not provided with reasons for why it has taken so long to resolve the issue e.g. parenting plan; and
The Applicant alleged that her request for a new worker was not heard by Respondent staff.
5The Applicant indicated “yes” in response to Question 10 in her Application (Is the concern you describe above currently before the Court?).
6On March 28, 2022, the Respondent provided its Summary Response to the Application. The Respondent argued that issues of custody and interim access to the Applicant’s son are currently before the Court. The Applicant’s son was placed in the care of his father and subject to an 8-month Supervision Order. The Applicant was granted interim access subject to specific terms and conditions. Issues of access continue to be before the Court. Court proceedings have been transferred to the District of Sudbury Court. The Children’s Aid Society of the Districts of Sudbury and Manitoulin has accepted the transfer of the ongoing service file. This transfer will be confirmed in Court in May of 2022.
7The Respondent appended an Affidavit authored by a Child Protection Supervisor presented to the Court on March 15, 2022, in support of its submissions.
8The Respondent argued that the Applicant’s requests for increased access have been heard and that the Applicant has been provided with reasons for its decisions. In addition, the Respondent argued that the CFSRB does not have jurisdiction regarding the issue of access as this issue continues to be before the Court.
9In a Case Management Direction dated March 29, 2020, the Applicant was directed to provide submissions and additional documentation on the CFSRB’s jurisdiction to review the Issues/Concerns in the Application.
10The Applicant submitted that issues related to her son were before the Court; however, the Court has granted the Respondent discretion regarding access. This was with the understanding that the Applicant’s access would be approved with her mother. No access occurred with the Applicant’s mother, and the Applicant’s community access was retracted after a miscommunication with an access worker. Since this incident, the Applicant’s access has been restricted to visits at the Respondent’s office, in rooms that are often small, too warm, and do not allow for appropriate bonding.
11The Applicant also indicated that there the Respondent has not justified their continued involvement and requirement for supervised access. The Applicant fears adverse impacts on her son’s development. The Applicant also indicated that her file has not been transferred to Sudbury despite an order.
THE LAW
12Subsection 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
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).
ANALYSIS
14I considered whether the CFSRB is precluded from reviewing the Application as the Issues/Concerns in the Application are issues that are or have been before the Courts.
15With 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”.
16My 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.
17The Respondent confirmed that issues of custody and access to the Child continue to be before the Court. The Child was placed in the care of his father pursuant to a Supervision Order.
18The Affidavit submitted to the Court by the Child Protection Supervisor on March 15, 2022, addressed the following issues:
The reasons for the initial Order finding the Child in need of protection
Interim custody and supervision order for the Child
The Applicant’s criminal charges for causing a disturbance, trespassing, and breaches of her conditions of release
The Decision not to allow access to the Applicant pursuant to an incident on March 28, 2021, where she attended the Child’s father’s home and demanded access
The Applicant’s apprehension under the Mental Health Act and the Applicant’s mental health diagnosis, treatment, and access to support services and the impact that her mental health has on her access
The Applicant’s lack of cooperation with child protection staff
The Applicant’s multiple requests for access to her son
The Applicant’s request for an update on how her son was doing
Requirement of the Applicant to meet with the Child Protection Worker before any access could be arranged
The fact that the Applicant was told on several occasions that access would be fully supervised at the Respondent’s office in Sudbury and could only be moved to unsupervised access in the community if things go well and Respondent staff observed a period of stability
The Respondent’s concerns with the Applicant’s failure to supervise the Child at all times and the impact that this had on the decision to continue with supervised access for 2 hours per week
The Applicant’s concerns that she felt targeted and that nothing was moving in terms of her getting unsupervised access
The Applicant’s concerns with the frequency and duration of access, her requests for unsupervised access at her home, and the Respondent’s statements that this is dependent on the Applicant moving towards her goals and that no specific timeframe could be identified
The Applicant’s concerns that she was never told what the Respondent’s concerns were, and the Respondent’s statement that it related to supervision concerns
The Applicant’s concerns regarding the fact that she was not provided with a parenting plan by the Respondent
The Applicant’s concerns with the Respondent’s failure to make up missed access visits
Jurisdictional issues for access visits between the Respondent and Sudbury Children’s Aid Society
Reasons for the Applicant’s file remaining open after March 16, 2021
The challenges in obtaining the Applicant’s mental health assessment and the impact that this had on the Respondent’s ability to move on access issues and planning for the Applicant
The Applicant’s request for a new worker
The Applicant’s concerns that the Child is at a crucial age for bonding with his mother and her requirement for additional bonding time with the Child
The Applicant’s concerns regarding missed access visits because the Child was sick
The Applicant returning the Child late for an access visit and her not providing truthful information to Respondent staff regarding her and the Child’s whereabouts leading to the suspension of community access and requirement to have supervised access visits at the Respondent’s office
The Respondent’s intention to have the file transferred to Sudbury and a Motion to that effect
Respondent’s requirement to follow-up with collaterals to consider unsupervised access and an increase in access time for the Applicant
Sudbury Children’s Aid Society’s verification findings against the Applicant
The Applicant’s struggle with boundaries and limitations, her dismissive and avoidant attitude towards professionals, and minimization of past incidents
19The contents of the Affidavit confirm that issues related to the interim custody of the Child; access and supervised access to the Child; parenting planning; the Applicant’s concerns regarding the lack of access and the development of the Child; and the request for a new worker were placed squarely before the Court.
20I considered the Applicant’s argument that the Respondent’s discretion around access were not issues before the Court. I note that the Affidavit clearly addressed the rationale for the Respondent’s discretion regarding supervised access, timing, and make-up of access. As such, the Respondent’s discretion around access issues were clearly before the Court.
21For the reasons outlined above, I find that the CFSRB is precluded from addressing all 5 Issues/Concerns in the Application pursuant to section 120(8) of the Act.
22The Application is dismissed in its entirety.
CONFIDENTIALITY ORDER
23Pursuant 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.
Dated at Toronto, April 12, 2022.
Daniel McSweeney
Daniel McSweeney
Member