JN v. Nogdawindamin Family and Community Services, 2022 CFSRB 25

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JN Applicant

-and-

Nogdawindamin Family and Community Services Respondent

DECISION

Adjudicator: Daniel McSweeney Date: May 26, 2022 Citation: 2022 CFSRB 25 Indexed As: JN v Nogdawindamin Family and Community Services (CYFSA s.120)

WRITTEN SUBMISSIONS

JN, Applicant Eric D. McCooeye, Counsel

Nogdawindamin Family and Community Services, Respondent Réjean Parisé, Counsel

INTRODUCTION AND BACKGROUND

1The Applicant filed 2 Applications 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 original Application (CA22-0001) was found eligible for review under sections 120(4) 4 and 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; and the Society has failed to provide the complainant with reasons for a decision that affected her interests.

3No eligibility decision was made for the second Application (CA22-0035); however, the 2 Applications were joined as they dealt with substantially the same Issues/Concerns.

4The Applicant is mother of one daughter (the “Child”) who is the subject of the Application.

5The Applicant identified the following Issues/Concerns in her 2 Applications:

1. The Applicant alleged that Respondent staff failed to hear her concerns related to alleged sexual abuse of the Child by her father;
2. The Applicant alleged that Respondent staff did not hear her concerns about the Respondent’s decision that it was safe for the Child to interact or have access with her father;
3. The Applicant alleged that Respondent staff did not return her calls and e-mails;
4. The Applicant alleged that Respondent workers lied on her file, including indicating that the Applicant admitted to using drugs when they knew that she was being drugged by her ex-partner;
5. The Applicant alleged that her Child was removed without just cause; and
6. The Applicant alleged that she and her Counsel were not provided Court documents by the Respondent until hours before Court.

6In the original Complaint, the Applicant indicated that her concerns (Issues/Concerns 1 – 4 identified above) had been dealt with by the Court.

7In its Summary Response to the original Application, the Respondent’s Counsel argued that the issues in the original Application related to an ongoing Court process and requested that the matter not proceed.

8In a Case Management Direction (CMD) dated January 26, 2022, the CFSRB directed the Respondent to provide it with relevant Court documents in support of its argument that the subject matter of the original Application was before the Court. In addition, both parties were asked to provide written submissions on whether the issues in the Application were separate and different from the substantive issues before the Court.

9The Respondent indicated that it was aware of an ongoing Court process based on information provided in the initial Application. The Respondent indicated that it had no additional material other than material appended to its initial Summary Response.

10In a letter to the Board dated January 26, 2022, the Applicant’s Counsel indicated that there was no “parallel court process”. Counsel indicated that the Applicant and her ex-partner were involved in a private court dispute under the Children’s Law Reform Act (CLRA) regarding parenting time and decision-making authority. Counsel reported that there were no Court proceedings which addressed any child protection issues. As such, the Applicant’s issues could not be addressed in any other forum.

11The Respondent subsequently obtained and disclosed Court documents related to the CLRA proceedings involving the Applicant, and documents related to the child welfare proceedings (removal hearing of March 23, 2022).

12The Applicant submitted a second Application (CA22-0035) on March 25, 2022. This Application referred to all 6 Issues/Concerns identified above.

13The Applicant was directed to make submissions on whether issues in her second Application were separate and different from the substantive issues before the Court. The Applicant did not provide any additional written submissions.

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 2 Applications.

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.

19I had before me the following Court documents provided by the parties:

• Endorsement of Justice J. Wilcox dated March 22, 2021
• Notice of Motion and Confirmation of Motion dated December 10, 2021
• Affidavit sworn by the Applicant’s ex-partner and submitted to Court on December 10, 2021
• Endorsement by Justice Restoule-Mallozzi dated March 23, 2022
• Affidavit signed by the Applicant dated March 23, 2022
• Affidavit from Child Welfare Worker “CWW” dated March 23, 2022

20Based on the documents before me, I find that issues related to access, custody, and the best interests of the Child have been and continue to be before the Courts through CLRA as well as Child Welfare Proceedings. The Courts are tasked to decide what is in the Child’s best interests. This includes an assessment of any risks to the health and safety of the Child. For this reason, the CFSRB cannot address issues that relate to the Child’s best interests as these issues will be decided by the Courts.

21The Applicant’s concerns related to the alleged sexual abuse of her daughter by her ex-partner were addressed in the Endorsement dated March 22, 2021; her Affidavit to the Court dated March 23, 2022; and the Affidavit of the Child Welfare Worker dated March 23, 2022. This Affidavit also referred to the Applicant’s concerns that the paternal grandfather had abused children. Therefore, I find that Issue/Concern 1 was before the Court.

22The Applicant’s concerns regarding the safety of her daughter while in the care of her ex-partner were addressed in the Endorsement dated March 22, 2021. The Applicant’s ex-partner addressed allegations of alleged sexual abuse of the Child in his Affidavit dated December 10, 2021. Therefore, I find that Issue/Concern 2 was before the Court.

23In Issue/Concern 3, the Applicant alleged that Respondent staff did not return her calls and e-mails. I note that the CFSRB did not request submissions from the parties on this issue; however, the Affidavit by the Child Welfare Worker reported that the Applicant has reported allegations of abuse since 2021 to the Respondent, and that the Applicant continues to report concerns with respect to the Child.

24The Affidavit cited examples of various interactions between the Applicant and Respondent staff. For example, the Applicant, the Respondent, and other service providers attended a case conference on November 18, 2021 during which the Applicant had an opportunity to share her concerns. The Affidavit from the Child Welfare Worker indicated that she had attempted to contact the Applicant between January 2022 and March 2022 to arrange a home visit, but she received no response from the Applicant. The Worker received a voicemail from the Applicant on March 8, 2022, which was returned by the Worker. In response to the voicemail, the Worker and the Applicant discussed the Applicant’s concerns as well as safety plans.

25The Child Welfare Worker’s Affidavit referred to the countless interactions between the Applicant and the Respondent since 2021, including reports to the Respondent, investigations, meetings, telephone calls and e-mails. The Applicant and Respondent staff continue to interact in relation to the Applicant’s concerns. As such, I find that issues related to the Applicant’s allegations that’s the Respondent did not respond to her verbal and e-mail reports were before the Court as they were outlined in the Child Welfare Worker’s detailed Affidavit. As such, the CFSRB does not have jurisdiction to address Issue/Concern 3.

26The Applicant substance abuse and mental health concerns were addressed in the Affidavit by the Child Welfare Worker dated March 23, 2002. The Endorsement dated March 22, 2021, also addressed the Applicant’s concerns that she was being drugged. As such, I find that Issue/Concern 4 were before the Courts.

27The reasons and justification for the apprehension of the Child were clearly outlined in the Affidavit by Child Welfare Worker dated March 23, 2022. The Endorsement by Justice Restoule-Mallozzi addressed issues of the placement of the Child in the temporary care and custody of the Respondent and addressed access to the Child by both parents. For these reasons, I find that Issue/Concern 5 was before the Court.

28The Applicant indicated that she had concerns regarding the timing of the service of Court documents by the Respondent. The Applicant indicated that Duty Counsel was able to put off proceedings so that the documents could be considered by Counsel. I find that issues related to the disclosure of Court documents are issues that should be addressed to the Court and not to the CFSRB as they relate to Court processes and issues of natural justice.

DECISION

29For the reasons identified above, Issues/Concerns 1, 2, 3, 4, and 5 are dismissed as these are issues that were before the Court or are currently before the Court. The CFSRB does not have jurisdiction to address these Issues/Concerns pursuant to the exemption in section 120(8) of the Act. I also find that the concern related to disclosure of Court documents (Issue/Concern 6) is an issue that is best addressed by the Court.

30As such, both of the Applicant’s Applications are dismissed in their entirety.

CONFIDENTIALITY ORDER

31Pursuant 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.