AM v. Sarnia-Lambton Children’s Aid Society, 2022 CFSRB 44

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AM Applicant

-and-

Sarnia-Lambton Children’s Aid Society Respondent

DECISION

Adjudicator: Daniel McSweeney Date: September 15, 2022 Citation: 2022 CFSRB 44 Indexed As: AM v Sarnia-Lambton Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

AM Applicant Self-represented

Sarnia-Lambton Children’s Aid Society, Respondent Shaunise Austin-Marshall, 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 sections 120(4)4 and 120(4)5 of the Act: it is alleged that the Respondent has not provided the Applicant an opportunity to be heard and represented when decisions affecting her interests were made and to be heard when she had concerns about the services she received; and it is alleged that the Respondent has failed to provide the Applicant with reasons for decisions that affected her interests.

3The Applicant is the mother of 4 children (the “Children”).

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

1. The Applicant alleged that she was not heard or provided a response regarding allegations of a conflict of interest between a Respondent worker and the wife of the Children’s father; and between another Respondent worker and the Children’s father;
2. The Applicant alleged that the Respondent did not share information with the Court regarding allegations that the Children’s father had sexually harmed his sister;
3. The Applicant alleged that Respondent workers did not speak directly to the Children and that records of interviews with the Children were not factual;
4. The Applicant alleged that Respondent workers favoured the Children’s father over her in documents presented to the Court;
5. The Applicant alleged that she was not provided with an explanation why the Children were removed despite the fact she did everything that was asked by Respondent workers;
6. The Applicant alleged she was not provided with sufficient detail around the investigation which led to the removal of the Children from her care; and
7. The Applicant alleged that she was not heard by Respondent staff on various occasions during 2007.

5The Applicant made reference to Court proceedings related to custody and access to the Children in her Application. The Respondent appended a Divorce Order dated December 8, 2008, which provided custody of the Children to their father, and supervised access with the Applicant.

6In its Summary Reply, the Respondent indicated that there was not enough detail in the Application to allow it to properly respond. The Respondent indicated that it had responded to a complaint submitted by the Applicant on January 25, 2022, after giving the Applicant an opportunity to be heard about her historical concerns on at least 4 occasions. The Applicant was also provided with a written response to her complaint.

7The Summary Response indicated that the Applicant was involved in custody and access proceedings before the Court. The Respondent also indicated that the Applicant was involved in child protection proceedings between 2007 and 2009, during which the Court addressed some of the issues included in the Applicant’s current Application. The Respondent indicated that the Applicant was provided with reasons as to why the Children were removed from her care in the records disclosed to her, as well as in documents presented at Court.

8To assist 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 submitted that the Issues/Concerns in the Application were not separate and different from the substantive issues before the Court. The Respondent indicated that there was one issue that has not been before the Court and was not decided by the Court; however, it argued that the subject of the complaint encompassed more than the content of any specific issue raised by a party before the Court as per SDA v Children’s Aid Society of Toronto, 2022 CFSRB 15.

10The Respondent appended the following documents to its submissions:

• Application for Child Protection and Status Review, December 21, 2006
• Affidavit of KJ, Child Protection Worker, December 18, 2006
• Affidavit of KJ, Child Protection Worker, February 19, 2007
• Affidavit of KJ, Child Protection Worker, April 12, 2007
• Affidavit of KJ, Child Protection Worker, June 1, 2007
• Affidavit of Applicant, June 11, 2007
• Variety of Case Notes by Child Protection Workers 2007
• Affidavit of KJ, Child Protection Worker, September 26, 2007
• Affidavit of Applicant, December 10, 2007
• Affidavit of Children’s Father, dated March 31, 2008
• Affidavit of Child Protection Work TL, dated June 25, 2008
• Affidavit of CC, Protection Support Worker, April 2, 2008
• Affidavit of Applicant, July 11, 2008
• Various access and custody orders for the Children
• Affidavit of Children’s Father, August 13, 2008
• Affidavit of Child Protection Worker TL, April 6, 2009
• Divorce Order dated December 8, 2008
• Affidavit of Applicant, April 7, 2009
• Reasons for Judgement, Justice Hornblower, October 8, 2008

11The Applicant’s submissions did not focus on the 2 questions identified in paragraph 8 above, rather they re-stated the Applicant’s Issues/Concerns in the Application and her arguments in support of her Issues/Concerns.

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.

17The Applicant alleged that some Respondent staff were in a conflict of interest. The alleged relationship between the Children’s father and KJ was placed before the Court at paragraph 15 in the Applicant’s Affidavit dated December 10, 2007; and responded to in the Children’s Father’s affidavit dated March 31, 2008, at paragraph 9. The Applicant’s concerns that KJ had a crush on the Children’s father and that she was taking his side were also referenced in the Affidavit of TL dated June 25, 2008, at paragraphs 11, 13.

18At paragraph 11 in the Affidavit of CC dated April 2, 2008, the Applicant commented that the Child Protection Worker KJ could have had the Children’s father’s baby. The Applicant’s Affidavit of July 11, 2008, at paragraph 53 discussed the relationship between the Applicant and Child Protection Worker KJ, and the Applicant’s view that KJ had a “special relationship” with the Child’s father. The Applicant also alleged that Ms. L is prejudiced against her at paragraph 70 of the same Affidavit and provides examples in paragraphs 82-84, and 95.

19The Affidavit by the Children’s father dated August 12, 2008, at paragraphs 16, 45-46, 77, and 80 indicated that the Applicant has tried to discredit the former Worker KJ and current Worker TL to further her own agenda.

20It is clear from the various affidavits presented to the Court that the Applicant had an opportunity to raise her concerns regarding alleged conflicts of interest between the Children’s father and Respondent staff. Given this, I find that the CFSRB does not have the jurisdiction to review Issue/Concern 1 in the Application as this issue has been before the Court.

21Regarding the Children’s father’s past history of sexual assault, I concur with the Respondent that this issue was raised in the Child Protection Application at paragraph 22. This paragraph speaks of historical concerns in the father’s home of origin (referring to the sexual assault), the father’s removal from the home, and his attendance at counselling. The Affidavit of the Child Protection Worker dated February 19, 2007, indicated that the Worker was cognizant of the Children’s father’s history and that the Children did not report any information that raised the Respondent’s historical concerns with the Children’s father. The Applicant had an opportunity to further explore these allegations and their impact on current custody and access issues at Court should she have wished. As such, I find that Issue/Concern 2 was placed squarely before the Court in the Respondent’s affidavits and therefore the CFSRB does not have jurisdiction to review this issue.

22The Applicant complained about the records of interviews with the Children not being factual. The CFSRB does not have jurisdiction to address concerns with inaccuracies of child welfare records. The Applicant can raise these concerns with the Office of the Information and Privacy Commissioner who has jurisdiction related to this issue under Part X of the Act. For this reason, the CFSRB does not have the jurisdiction to address Issue/Concern 3.

23The Applicant’s concerns that Respondent staff did not support her and were supporting the Children’s father was raised in the Affidavit of CW dated September 26, 2007. At paragraph 9, the After-Hours Worker reported that the Applicant indicated that the Child Protection Worker was “out to get her”. The Affidavit addressed the Applicant’s concerns that the Worker was favouring the Children’s father and that the Worker was “out to get her” at paragraph 12. The Applicant’s affidavit dated December 10, 2007, at paragraph 12 addressed her concerns that the Worker was siding with the Children’s father against her. In the Applicant’s Affidavit of July 11, 2008, at paragraph 25, the Applicant indicated that she believed that Respondent staff have been working against her from the beginning of their interactions. The Affidavit of CC dated April 2, 2008, at paragraph 10 discussed the Applicant’s belief that the CAS is against her and that workers were making things up about her and lying about what the children say and feel.

24As such, I find that Issue/Concern 4 was placed squarely before the Court in the Applicant’s as well as the Respondent’s materials. Therefore, the CFSRB is precluded from reviewing Issue/Concern 4 based on section 120(8) of the Act.

25I find that issues related to the removal of the Children from the Applicant’s care were placed squarely before the Court in the Child Protection Application; in the Child Protection Worker’s JK affidavit dated December 18, 2006; and Affidavit of Child Protection Worker TL dated June 25, 2008. The documents speak of the Applicant’s inappropriate discipline and lack of behavioural management skill; her mental health concerns; the history of domestic violence; and the effect of the family’s transient lifestyle on the Children. These documents also referred to the investigation process and conclusions of the Respondent and the local police service. The Applicant also shared with the Court her concerns that she has not been informed as to why the Children were removed in her Affidavit dated July 11, 2008. As such, I find that Issues/Concerns 5 and 6 were placed squarely before the Court and the CFSRB does not have jurisdiction to review these issues.

26Finally, I considered the Applicant’s concern that she was not heard by Respondent staff when she raised concerns during 2007. I find that the vast majority of the documents provided by the Respondent (see paragraph 10) deal with the interaction between the Applicant and the Respondent throughout 2007. The Affidavits provide detailed accounts of the Respondent’s concerns and interactions with the Applicant and the Applicant’s response to the concerns and interactions. As such, I find that the Applicant raised her concerns with the interaction between she and Respondent staff during 2007 before the Court. The CFSRB therefore does not have the jurisdiction to review Issue/Concern 7.

DECISION

27For the reasons outlined above, I find that all the Issues/Concerns in the Application have been placed squarely before the Court in child welfare and custody and access proceedings over a period of 4 years. The Applicant was represented throughout the proceedings and had the opportunity to raise her concerns before the Court on multiple occasions.

28In addition, I have before me evidence that the Applicant has been given an opportunity to meet with senior staff to share her concerns earlier in 2022, and she has been provided responses to her questions/concerns in writing from the Director of Services.

29The Application is therefore dismissed in its entirety for a lack of jurisdiction.

CONFIDENTIALITY ORDER

30Pursuant 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.