JS v. Family and Children’s Services of Renfrew County, 2022 CFSRB 34

CHILD AND FAMILY SERVICES

REVIEW BOARD

BETWEEN:

JS

Applicant

-and-

Family and Children’s Services of Renfrew County

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: July 22, 2022

Citation: 2022 CFSRB 34

Indexed As: JS v Family and Children’s Services of Renfrew County

(CYFSA s.120)

WRITTEN SUBMISSIONS

Family and Children’s Services of Renfrew County, Respondent

Lauren C. Blanchet,

Counsel

INTRODUCTION AND BACKGROUND

1This is an Application (Complaint) 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”).

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 two sons (the “Children”).

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

1. The Applicant alleges that Respondent staff removed one of the Children in February of 2021 without an adequate reason;

2. The Applicant alleges that Respondent staff ignored evidence she presented of harassment by one of her ex-partners;

3. The Applicant alleges that Respondent staff have refused her regular access to the Children through in-person visits and phone and video calls;

4. The Applicant alleges that she has been treated unfairly and harshly judged by Respondent staff;

5. The Applicant alleges that Respondent staff have failed to return her calls; and

6. The Applicant alleges that Respondent staff have failed to provide updates on the Children.

5This is the second Application by this Applicant this year. She had previously submitted an Application in January of 2022 (CA22-0009) which included the following Issues/Concerns:

1. The Applicant alleged that she was not heard by Respondent staff when she expressed her opinion that the Children should be returned to her after the incident of February 24, 2021;

2. The Applicant alleged that her concerns regarding access to her youngest child (TL) were not heard by Respondent staff; and

3. The Applicant alleged that the Respondent has not heard her when she attempted to provide evidence to them regarding her concerns regarding the health, safety and welfare of the Children while outside her care.

6I dismissed the first Application in its entirety given that all the Issues/Concerns were found to be issues that were before the Court or had been before the Court. As such, the CFSRB was excluded from reviewing them pursuant to s. 120(8) of the Act.

7In its Summary Response to the current Application, the Respondent argued that Respondent staff did not fail to provide the Applicant an opportunity to be heard. In addition, the Respondent argued that the CFSRB did not have jurisdiction to review the Application as its contents fell squarely within the confines of section 120(8) of the Act as it dealt with issues that were decided by the Court or are currently before the Court.

8The Respondent also indicated that the Applicant’s previous Application (CA22-0009) contained the same issues as the most recent Application.

9The Respondent Appended the following documents presented to the Court to its Summary Response:

• Application – Child Protection and Status Review, dated March 1, 2021

• Affidavit from Child Protection Worker (SB), dated February 28, 2021

• Endorsement of Madam Justice Mary Fraser, dated November 8, 2021

10In a Case Management Direction (CMD) dated June 21, 2022, the Applicant was directed to provide submissions regarding whether any of the issues in her Applicant were separate and different than the substantive issues before the Court. The Applicant was also directed to explain in what way, if any, her current Application differed from the Application filed in January of 2022. The Applicant did not provide any written submissions.

THE LAW

11Section 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

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).

13The 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.

14Section 20.1 of O.Reg 494/06 under the Child and Family Services Act, R.S.O. 1990, c. C.11 provides the CFSRB with authority to take steps to prevent an abuse of process. It reads as follows:

In order to provide for the just and expeditious resolution of a proceeding arising from an application requesting a review of a complaint under s.68(5) or 68.1(1) of the Act, the Board may make such orders and give such directions in the proceeding as it considers proper to prevent abuse of its processes.

15The CFSRB also applies its Common Rules on abuse of process. Rule A8.1 of the Common Rules reads as follows:

The tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

16The Ontario Court of Appeal considered the common law doctrine of abuse of process in Taylor Made Advertising Ltd. v. Atlific Inc., 2012 ONCA 459 at paras 30 and 32. Relying on the Supreme Court of Canada’s decision in Toronto (City) v. CUPE Local 79, 2003 SCC 63 (CUPE), the Court of Appeal affirmed that the common law doctrine of abuse of process

(…) engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.

In determining whether legal proceedings ought to be dismissed as an abuse of process, the question is whether the proceedings would be “oppressive” or “vexatious" or “unfair to the point that they are contrary to the interest of justice".

[17] The CFSRB concluded in DP v. Children’s Aid Society of Hamilton (CFSA s. 68), 2017 CFSRB 30 (DP), a decision maker ought not to conclude that the inclusion in an application of allegations that have been previously litigated automatically constitutes an abuse of process. Rather, the decision must engage in a contextual analysis that takes into account all of the relevant factors and balances the interests of the parties in order to arrive at a just outcome overall.

[18] CUPE establishes that the abuse of process doctrine precludes re-litigation that would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice, while recognizing that fairness may dictate that re-litigation be permitted in certain circumstances: See CUPE, above, at paras. 37 and 52-55.

ANALYSIS

19I considered the jurisdictional issues outlined by the Respondent.

20I considered whether the CFSRB had jurisdiction to review the Application pursuant to the exclusion in section 120(8) (a) of the Act which indicated that the CFSRB could not 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”.

21My 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.

22In my previous decision (CA22-0009) I had before me the same Court Documents (Protection Application dated March 1, 2021; Affidavit from Child Protection Worker SB dated February 28, 2021; and Endorsement of Madam Justice Marcy Fraser dated November 8, 2021) as were submitted in response to the current Application.

23These documents addressed the reasons for the apprehension of the Children; issues of access and custody for both Children, including the requirement for supervised access; access challenges between the Applicant and Respondent; the Applicant’s long history of difficulties with Respondent staff, especially in relation to staff trying to engage with the Applicant; the Applicant’s resistance to safety planning and adhering to behavioural and other requirements to have the Children returned to her; the Applicant’s inability to engage with Respondent staff; the Applicant’s failure to attend access since March 2021 and the Applicant’s behaviour during supervised access; the requirement of all parents to exchange information with respect to the Children’s school, medical appointment and follow-ups; the high level of conflict between the Applicant and her ex-partners; the Applicant’s concerns with the fathers of the Children; and the Applicant’s criminal charges and harassing conduct related to one of her ex-partners.

24I find that Issues/Concerns 1 – 5 in the current Application are issues that have been addressed or are currently before the Court. As such, the CFSRB is precluded from reviewing these Issues/Concerns pursuant to section 120(8) of the Act.

25I considered the Respondent’s submissions that the current Applicant was a duplicate of the Application submitted in January of 2022. With the exception of Issue/Concern 6, the remaining allegations in the January 2022 Application were substantively the same as those decided in my decision on File CA22-0009.

26I then considered whether re-submitting a substantially similar amounted to an abuse of process. I find that proceeding with Issues 1-5 would amount to duplication and an abuse of process for several reasons. One, relitigating the same issue in the same forum would result in unnecessary costs to the CFSRB and the Respondent. Two, placing the CFSRB in a position where it may make findings which conflict with a previous CFSRB decision on the same matter (issue estoppel) will result in undermining the credibility of the CFSRB as a tribunal. Three, the parties are entitled to finality in judicial decision-making.

27In coming to this decision, I have relied on the direction of Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CUPE), (cited above), on the impact of an abuse of process on the integrity of the adjudicative process. In addition, I considered the direction of Worker’s Compensation Board v. Figliola 2011 SCC 52 in relation to fairness and finality in decision-making.

28I then considered Issue/Concern 6: The Applicant alleged that Respondent staff have failed to provide updates on the Children. The Respondent has provided evidence of Respondent staff’s attempts to communicate with the Applicant to provide updates related to the Children. Given the number of documents provided by the Respondent in relation to this Issue/Concern; given that the decision to be made is limited; given that no additional oral evidence is necessary for me to decide the issue; and given that deciding the issue in writing offers an efficient and expeditious resolution to the Application, I have decided to decide this issue in writing.

29The Respondent has provided evidence of ongoing updates with the Applicant regarding the health and welfare of the Children. For example, a letter dated May 13, 2021, spoke about one son’s vision, his work with a counsellor, and his need for ongoing support. The same letter referred to the other Child’s health and his progress with toilet training. A letter dated June 8, 2021, provided updates to the Applicant regarding both Children. A letter dated July 29, 2021, addressed the Applicant’s older son’s counselling and well-being, and the younger son’s developmental milestones. Additional updates were provided on September 10, 2021; December 3, 2021; and April 26, 2022. Many of the updates also address access issues. One addressed the provision of Christmas gifts to the Children.

30Based on the letters before me, I find the Respondent has made adequate efforts to provide the Applicant with written updates on the health, development, and well-being of the Children. As such, I dismiss Issue/Concern 6.

DECISION

31For the reasons identified above, Issues/Concerns 1-5 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.

32I also find that Issue/Concern 6 is a service-related concern and that the Respondent has made efforts to provide the Applicant with updates regarding the health and wellbeing of both Children. As such, I dismiss this Issue/Concern.

CONFIDENTIALITY ORDER

33Pursuant 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.