LR v. Nogdawindamin Family and Community Services, 2022 CFSRB 29

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LR

Applicant

-and-

Nogdawindamin Family and Community Services

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: June 24, 2022

Citation: 2022 CFSRB 29

Indexed As: LR v Nogdawindamin Family and Community Services (CYFSA s.120)

WRITTEN SUBMISSIONS

Nogdawindamin Family and Community Services, Respondent

Réjean Parisé, Counsel

INTRODUCTION AND BACKGROUND

1This is an Application 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”).

Background

2The CFSRB found the Application eligible to proceed under sections 120(4)4 and 120(4)5 of the Act.

3The Applicant is the mother of a son (the “Child”).

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

1. The Applicant alleged that she was not provided with reasons by the Respondent why her in-person access visits with the Child were discontinued during COVID:

2. The Applicant alleged that she was not provided with any information regarding the Internal Complaints Review Board when she asked about having her complaint reviewed by more senior staff;

3. The Applicant alleged that the Respondent has not heard her statements that their decision to deny unsupervised visits with the Child based on its belief that only the Courts can decide the issue of supervision is not true;

4. The Applicant alleged that the Respondent has not heard her concerns that the Child has been taken from her based-on allegations that she was an unfit mother despite the fact that she was the victim of domestic abuse;

5. The Applicant alleged that her concerns regarding missing time with her son were not heard by the Respondent; and

6. The Applicant alleged that her concerns regarding the lack of movement in the custody case and its impact on custody has not been heard by the Respondent.

THE LAW

5Section 120(8)(a) 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.

6Rule 21.2 of the CFSRB’s Rules of Procedure requires a children’s aid society relying on section 120(8)(a) of the Act to provide “all relevant documents and any Court orders”.

7The Ontario Court of Appeal ruled in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441 that the existence of child protection proceedings does not bar the CFSRB from reviewing complaints about services received from a children’s aid society if the complaints are separate and different from the substantive issues before the court.

8In its Summary Response, the Respondent has indicated that some or all the issues in the Application have been and are currently before the Court.

9To assist me in determining whether the CFSRB has jurisdiction to address the Issues/Concerns in the Applicant’s complaint pursuant to s. 120(8) of the Act, parties were required to provide submissions on the following 2 questions:

1. Are there any issues in the current Application that are before the Court of have been decided by the Court in the past?

2. Are there any issues in the current Application that are not issues that have been before the Court or have not been decided by the Court in the past?

10The Applicant did not provide submissions.

11The Respondent indicated that the need to place the Child in protection, custody, and access issues were addressed in the Orders by several Justices. The Respondent indicated that the lack of in-person visits during the pandemic was explained to the Applicant. In addition, the Applicant has moved away from the community where the Child currently resides.

ANALYSIS

12I considered the jurisdictional issues associated with the Complaint.

13Section 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”.

14My 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.

15The Respondent appended the following documents to its initial Response and its Submissions:

• Temporary Order placing the Child in the interim care of the Respondent dated March 25, 2019
• Temporary Order placing the Child in the interim care of the Respondent dated July 25, 2019
• Notice of Motion by the Respondent dated March 29, 2021
• Affidavit of Christine Nielson, Child Welfare Worker dated August 20, 2021
• Affidavit of Michelle Owl, Child Welfare Worker dated August 20, 2021
• Affidavit of Tanya Kirwan, Children’s Support Worker dated August 20, 2021
• Applicant’s (Nogdawindamin’s) Trial Book of Affidavits – 10 Tabs and Supporting Exhibits
• Final Order regarding placement and access dated November 23, 2021

16I considered Issues/Concerns 1 and 5. I have found that the Applicant’s concerns related to access visits, missing access time with her sone, and missing visits during COVID have been placed squarely before the Court. For example, the Affidavit of Michelle Owl addresses the fact that the Applicant had supervised visits and video visits with the Applicant during COVID and speaks of the various interruptions to supervised access with the Applicant because of the pandemic.

17The Affidavit of Tanya Kirwan dated August 20, 2021, addresses inconsistencies in access visits between the Applicant and her son, including the number of scheduled visits not attended by the Applicant. The Affidavit addresses the impact of COVID on the Applicant’s access visits. The Affidavit covers the fact that the Applicant was provided supports to achieve regular access with her son. The Affidavit of Christine Nielsen dated April 21, 202 address the requirement to implement COVID protocols in relation to access issues. The Affidavit of Cecilia Southwind dated March 19, 2020, mentions that the Applicant has not attended access and her failure to verify access resulting in visits being cancelled which has resulted in Nogdawindamin recommending that access be at its discretion.

18Based on the Court documents before me, I find that issues related to the Applicant missing time with her son and disruptions related to COVID were placed squarely before the Court. The CSFRB therefore does not have jurisdiction to review Issues/Concerns 1 and 5 in the Application.

19I also find that issues related to custody and the Applicant’s access to her son have been placed before the Courts. The various Orders, including the Final Order confirmed that issues related to the custody of the Child as well as the Applicant’s access to the Child were placed squarely before the Court on multiple occasions. I find that the CFSRB does not have jurisdiction to address these issues as it must show deference to issues decided by the Court. The issue of the custody of the Child was an issue that was decided by the Court. As such, I find that the CFSRB cannot review Issues/Concerns 3 and 6 in the Application.

20I find that the reasons for the Respondent’s apprehension of the Child have been placed on multiple occasions before the Court. The Affidavit of Christine Nelson, includes the reasons for the Child being apprehended including issues related to the Applicant’s mental health, use of substances, domestic violence, engagement in services, inconsistencies with attendance to parenting time, the parents’ behaviour during parenting time, and adult conflict in the presence of the Child. The same reasons were included in the Affidavit of Holly Guppy dated October 16, 2020, and that of Jennifer Roy dated November 27, 2020. Given that the reasons for the apprehension of the Child were placed before the Court, I find that the CFSRB does not have the jurisdiction to address Issue/Concern 4 in the Application.

21Issue/Concern 2 involves the Respondent’s failure to provide the Applicant with information regarding the Internal Complaints Review Panel (ICRP) when she asked for her complaint to be reviewed or moved to a higher level. Section 119 (3) states that: “A society shall make information relating to the complaint review procedure available to the public and to any person upon request”. The Applicant alleges that the Respondent’s failure to inform her of the ICRP process resulted in her not being heard by the Respondent.

22I have no evidence before me on this issue other than the statements in the Application.

23Given that Issue/Concern 2 falls with section 120(4)4 of the Act, I find that this issue can move on in the complaint process. A Case Processing Officer will contact the parties to make further arrangements.

DECISION

24For the reasons identified above, the Issues/Concerns 1, 3, 4, 5, and 6 are dismissed as these are issues that were placed before the Court. Issue/Concern 2 will move on in the process.

CONFIDENTIALITY ORDER

25Pursuant 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.