CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
KK
Applicant
-and-
Children’s Aid Society of the Niagara Region
Respondent
DECISION
Adjudicator: Daniel McSweeney
Indexed As: KK v Children’s Aid Society of the Niagara Region
(CYFSA s.120)
WRITTEN SUBMISSIONS
KK
Applicant
Self-represented
Children’s Aid Society of the Niagara Region, Respondent
Chris Etherden,
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 Complaint 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.
3The Applicant is mother of two sons (the “Children”).
4The parties participated in a Mediation on May 2, 2022, and arrived at a partial settlement of the issues/concerns identified in the Application. The following issue/concern remained for determination:
- The Applicant alleged that her concerns regarding her ex-partner drinking when caring for or driving the Children contrary to a Court Order prohibiting this were not heard by the Respondent and the Respondent has not provided details regarding its investigation of her concerns or reasons for its actions or lack of actions regarding those concerns.
5On June 7, 2022, the Respondent was directed to provide written submissions and relevant Court documents on whether the CFSRB was precluded from reviewing an issue that has been decided or is before the Court pursuant to s. 120(8) of the Act. The Applicant was directed by the CFSRB to provide a list of times when she contacted the Respondent with her concerns about her ex-partner’s drinking when caring for or driving the Children; as well as was directed to provide submissions on the s. 120(8) exemption.
6The Applicant provided submissions in which she argued that the Family Court had no jurisdiction to direct a society in its supervisory role. The Applicant argued that the Respondent was negligent in its supervisory role regarding her former-partner’s drinking while driving with the Children or while in a caregiving role. In addition, the Applicant argued that the Respondent has not heard her concerns and has not provided reasons for the Respondent’s decisions regarding the Application.
7The Respondent argued that the Applicant’s former partner’s use of alcohol and substances was a concern that led to the Respondent’s Court involvement. The issue of the father’s use of alcohol while in a caregiving role was an issue that has been, and continues to be before the Court. As such, the Respondent argued that the CFSRB did not have the jurisdiction to proceed with the remaining complaint and allegations.
THE LAW
8Section 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
9The 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
10I considered the jurisdictional issue associated with the Complaint. Section 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”. My 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.
11The Respondent appended various Court documents to its jurisdictional submissions. These documents confirmed that the issue of the Children’s father’s substance use; the Applicant’s concerns related to this issue; the Respondent’s investigation of the allegations; and the Respondent’s communication with the Applicant related it its investigation were issues which have been and continue to be before the Court.
12For example, paragraph 18 of the Justice Henderson’s Endorsement clearly indicated that the Children’s father’s substance use was considered by the Court, and that the father has been cooperating with the Respondent in dealing with these issues. The Endorsement also addressed the conditions imposed by the Respondent on the Children’s father regarding his use of substances while in a caregiving role.
13The Affidavit submitted by MK, Child Protection Worker, on January 12, 2022, clearly identified the Respondent’s concerns with the alcohol use by the Children’s Father; the Applicant’s concerns regarding the risk of harm to the Children because of the father’s substance use; the attempts by the Respondent to communicate with the Applicant regarding her concerns; and Respondent staff efforts to investigate the Applicant’s concerns and its findings related to the allegations.
14The Applicant’s Affidavit dated January 6, 2022, submitted to the Court also addressed her concerns with her ex-partner’s substance use and the impact on the safety of the Children.
15Finally, the Notice of Motion dated November 29, 2021, addressed the conditions suggested for the Children’s father, including attendance at addictions counselling and following the recommendations of a counsellor; and refraining from alcohol use while in a caregiving role.
16Given the evidence before me, I find that issues related to the substance use of the Children’s father were presented and considered by the Court on several occasions. This included conditions imposed on the Children’s father by the Court. Any concerns regarding the Children’s father’s behaviour and alleged contravention of the conditions imposed by the Court are issues that must be addressed by the Court.
17The Court also had before it evidence related to the Respondent’s investigation and its attempts to communicate the results of its investigation to the Applicant. On several occasions, the Applicant was unavailable or ended the call when Respondent staff attempted to broach the subject of their findings regarding the Children’s father’s substance use.
18The CFSRB will not engage in a review of issues that were or are currently before the Court, including the remaining issue/concern in the Application as it is precluded from doing so pursuant to s. 120(8) of the Act. If the Applicant has concerns regarding the Children’s father’s breach of any conditions imposed upon him by the Court, or if she has any ongoing concerns which would impact on the Court’s best interest analysis, it is incumbent on her to direct these concerns with the Court. The Court is tasked with making a decision regarding what is in the Children’s best interests, including issues around custody, access, and conditions of supervised access.
DECISION
19For the reasons identified above, the remaining issue in the Application is dismissed.
CONFIDENTIALITY ORDER
20Pursuant 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, August 02, 2022.
Daniel McSweeney
Daniel McSweeney
Member```