HF v. Children’s Aid Society of the Region of Peel, 2022 CFSRB 42

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

HF Applicant

-and-

Children’s Aid Society of the Region of Peel Respondent

DECISION

Adjudicator: Daniel McSweeney Date: September 08, 2022 Citation: 2022 CFSRB 42 Indexed As: HF v Children’s Aid Society of the Region of Peel (CYFSA s.120)

WRITTEN SUBMISSIONS

HF Applicant Self-represented

Children’s Aid Society of the Districts of Sudbury and Manitoulin, Respondent Robin L. Saari, 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”).

2The CFSRB found the Application eligible to proceed under section 120(4)4 of the Act: The Applicant alleges she was not given the opportunity to be heard and represented when issues affecting her interests were made, or a chance to be heard when she raised concerns about the services she is receiving.

3The Applicant is the mother of a son and a daughter (the “Children”).

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

1. The Applicant was concerned that her allegations regarding spousal abuse involving the Children’s father in front of the Children were not heard;
2. The Applicant was concerned that Respondent staff did not provide her with an explanation regarding supervised access conditions (location of access visits, supervisor required, exclusion of current partner) imposed by the Respondent that were not consistent with the conditions in the Court Order; and
3. The Applicant was concerned that Respondent staff did not hear her evidence that her current partner was not involved in “child grooming”.

5In the Application, the Applicant indicated that issues of custody and access had been and are still before the Court.

6In its Summary Reply, the Respondent indicated that the issues identified in the Application are currently before the Ontario Court of Justice in a proceeding pursuant to the Child, Youth and Family Services Act. As such, the CFSRB did not have jurisdiction to review the complaints pursuant to s. 120(8) of the Act. In the alternative, the Respondent submitted that staff have met with the Applicant on multiple occasions to review her concerns, including concerns regarding access; adult conflict in the matrimonial home; and the safety and well-being of the Children.

7The Respondent attached a Temporary Orders dated October 5, 2021, and March 10, 2022; and a Final Order dated June 22, 2022, to its Summary Reply.

8To 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, I requested that the parties provide me with submissions on the following 2 questions:

1. Are the Issues/Concerns in the CFSRB Application currently before the Court or have they 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?

9The Respondent indicated that the subject matter of the Application was before the Court in domestic family court proceedings, a child protection proceeding, and criminal proceedings involving the Applicant’s partner. The Court has found that the Children were in need of protection based on a risk of sexual and emotional harm associated with the Applicant’s current partner. The Applicant’s recourse related to the protection finding and the Court’s decision related to supervised access is through the Court and not the CFSRB.

10Finally, the Applicant’s concerns regarding domestic abuse by the Children’s father have been heard and considered by the Respondent.

11With respect to the issue of jurisdiction, the Applicant submitted that the Respondent has become involved in the allegations against her current partner through false allegations brought before Family Court. The Applicant alleged that the Respondent has provided the Children’s father with full possession of the matrimonial home which is contrary to a judge’s order. The Applicant also argued that the Respondent has inserted itself in criminal matters involving her current partner; and evidence presented at Family Court was sealed. The Applicant indicated that the Court was not aware of her former partner’s abusive and threatening behaviour related to the June 25, 2022, incident.

THE LAW

12Section 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.

13Rule 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”.

14The 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.

ANALYSIS

15I 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”.

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.

17I find that Issue/Concern 1 (Applicant’s concerns regarding spousal assault) related to an incident dated June 25, 2022, which post-dated any current Court Proceedings. I do not have before me any evidence that similar issues had been raised before the Court at any time prior to its latest 6 Month Supervision Order issued on June 22, 2022. As such, I find that the CFSRB has the jurisdiction to review Issue/Concern 1 in the Application.

18I find that Issue/Concern 2 (access and custody issues) are subjects that have been and are currently before the Court. As noted above, the Court issued a 6 Month Supervision Order on June 22, 2022. This Order indicated that the Applicant’s access was at the discretion of the Respondent and should consider the Children’s wishes. I concur with the Respondent that the Court is the most appropriate venue for the Applicant to bring her concerns regarding access and custody as it has been involved in this subject matter since at least October 2021. The Court has access to the full record as well as the benefit of oral testimony and submissions from all parties. I also find that issues related to access and the marital home are issues which fall squarely within the purview of the Courts.

19Given the Court’s involvement in the issue of access and supervision, and related to marital assets, I find that the CFSRB does not have jurisdiction to address Issue/Concern 2 in the Application.

20I considered Issue/Concern 3 (allegations of grooming by the Applicant’s current partner). I note that the Applicant’s partner has been charged with several sexual offences involving minors. The risk of sexual and emotional harm to the Children posed by the Applicant’s current partner was recently addressed at Court which resulted in a 6 Month Supervision Order. As such, I find that this issue was placed squarely before the Court.

21I further note that the Applicant indicated in her submissions that a Respondent worker swore an affidavit (14A) submitted to the Court which addressed the issue of one of the Children being present during an incident where pornography was being filmed. This is further evidence that the issues of grooming and potential harm to the Children were before the Court. The Applicant also indicated that her former partner’s evidence was presented at Family Court and was sealed for prejudice and irrelevancy.

22Given the Applicant’s evidence and submissions, I find that Issue/Concern 3 has been and will be before both the Family and Criminal Courts. As such, the CFSRB does not have jurisdiction to address Issue/Concern 3 pursuant to s. 120(8) of the Act.

DECISION AND DIRECTION

23For the reasons Issues/Concerns 2 and 3 are dismissed for lack of jurisdiction.

24Given the comprehensiveness of the parties’ submissions the parties will be asked to provide written submissions on or before September 23, 2022, on whether Issue 1 would best be decided through a written hearing. Parties are asked to refer to the CFSRB Rules of Procedure.

25The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or videoconference. 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.

26I will decide whether Issue/Concern 1 will be decided through a written hearing or will move on in the complaints process based on the submissions.

CONFIDENTIALITY ORDER

27Pursuant 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.