CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
TR
Applicant
-and-
Children’s Aid Society of the District of Thunder Bay
Respondent
INTERIM DECISION
Adjudicator: Daniel McSweeney
Indexed As: TR v Children’s Aid Society of the District of Thunder Bay (CYFSA s.120)
WRITTEN SUBMISSIONS
TR
Applicant
Self-represented
Children’s Aid Society of the District of Thunder Bay, Respondent
Mary Catherine Chambers,
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 a teenage daughter (the “Child”).
4The Applicant identified the following Issues/Concerns in her Application:
The Applicant alleged that her and the Child’s concerns related to the safety and well-being of the Child while in the care of her father (concerns with father’s alcoholism; father’s verbal, physical and sexual abuse of the Child; father’s violence and threats of self-harm; game playing regarding access; and allegations of father’s involvement in drugs) were not heard and investigated by Respondent staff;
The Applicant alleged that her concerns related to the Child’s obtaining a safe place to stay; her concerns about the Child running away; and her concerns regarding the Child’s mental health and well-being while in the care of the Respondent were not heard by Respondent staff;
The Applicant alleged that her requests for family counselling were not heard by Respondent staff; and
The Applicant alleged that Respondent staff did not consult her or provide her with updates or reasons for their decisions and actions in relation to the Child.
5In its Summary Response, the Respondent argued that the CFSRB lacked jurisdiction to review the Application as the matters raised in the Applicant’s complaint were issues that have been before the Court and are currently before the Court. A Protection Application was brought before the Court on October 6, 2020, and the matter was resolved by a Final Order on February 1, 2022. This Order was made based on a Statement of Agreed Facts signed by all parties, including the Applicant. The Respondent indicated that a Status Review Application would be heard on August 23, 2022.
6On August 8, 2022, the Respondent was directed to provide submissions and documents on whether the issues in the Application were separate and different to the substantive issues before the Court. The Applicant was also asked to provide submissions on the same issue.
7The Respondent submitted that the Application raised issues that have already been decided by the Court and are currently before the Court. For example, the Respondent argued that the Complainant’s Answer and Plan of Care raised the same issues from the spring, summer and fall of 2020 which the Applicant raised in her Application to the CFSRB. The Statement of Agreed Facts signed by the Applicant on January 27, 2022, addressed the factual matrix contained in the Complainant’s most recent Application to the CFSRB with the exception of a matters raised which occurred after January 27, 2022.
8The Respondent submitted that the CFSRB cannot re-open matters that have been determined by the Court. The Applicant has had the opportunity to express her views and concerns regarding the Respondent’s investigative processes, service delivery, and care and placement decisions for the Child. The issues raised by the Applicant are part of the broader subject matter and substantive issues currently before the Court.
9The Respondent appended the following documents to its submissions:
Answer and Plan of Care, November 1, 2020
Temporary Order, December 20, 2020
Statement of Agreed Facts, January 19, 2022
Final Order, April 12, 2022
Status Review Application, June 3, 2022
Chart of Issues and Where Raised in Court Proceedings
10The Applicant submitted that the majority of the issues raised in the original Plan of Care (November 2020) were no longer relevant to the main issues in her Application. The issues related to the risks to the Child associated with her father are no longer relevant as the Child has had no contact with her father for some time.
11The Applicant submitted that she was concerned with a pattern of neglect by Respondent staff in acting on referrals and complaints; the Respondent staff’s failure to include and inform her in decision-making; and a lack of communication and follow-up by Respondent staff. These issues were not addressed in the Statement of Agreed Facts. The Court has not addressed the Applicant’s concerns related to the behaviour of Respondent staff.
12The Applicant was also concerned with Respondent staff member’s actions in support of the Child’s decision not to tell the Applicant anything about the Child. This has not been addressed by the Court.
THE LAW
13section 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.
14Rule 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”.
15The 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
16I 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”.
17My 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.
18It is clear from my reading of the Statement of Agreed Facts and the Status Review Application that issues related to the health, safety, physical and mental well-being, of the Child have been presented to the Court. The Court was tasked to assess the best interests of the Child as a basis for its Order to place the Child in the care and custody of the Respondent. The Applicant concedes in her Submissions that many of her concerns related to the Child’s father are no longer relevant.
19Based on the documents before me, I find that Issues/Concerns 1 and 2 have been placed squarely before the Court and therefore the CFSRB does not have jurisdiction to review these Issues/Concerns.
20With respect to the Applicant’s requests for individual and/or family counselling, I find that issues related to the Child’s mental health have been raised before the Court in the Statement of Agreed Facts at paragraphs 1 e, f, and g. As such, Issue/Concern 3 has been placed before the Court.
21Issue/Concern 4 raises some unique questions. Given the Child’s age, and the Child’s express statements that she did not want her mother informed about the goings-on in her life, the Respondent has been faced with a legal and ethical dilemma regarding its role in providing ongoing communication with the Applicant, including informing the Applicant of the reasons for its decisions related to the Child.
22The Status Review Application and the Statement of Agreed Facts clearly stated that the Child does not want any contact with her mother and that the Child has ignored the Applicant’s text messages. The Statement of Agreed Facts provided some examples of the communication/updates between the Respondent staff and the Applicant; however, I find that the documents presented to the Court did not address the core concern that the Applicant identified regarding her interactions with Respondent staff: staff not consulting her or providing her with updates or reasons for their decisions and actions.
23I find that these service-related issues are separate and different from the substantive issues related to the health and well-being of the Child that were placed before the Court and decided by the Court.
24The Applicant’s concerns relate to the service or lack thereof she received. They also relate to the interaction between a non-custodial parent and a society in response to a request by an older child. These issues were not discussed at Court. I find that both parties would benefit from further discussion/exploration of these issues and their impact on the service the Applicant receives through the CFSRB process. As such, I find that the CFSRB has jurisdiction pursuant to sections 120(4) 4 and 120(4) 5 to review this concern.
DECISION
25Issues/Concerns 1 – 3 are issues that have been placed squarely before the Court and therefore the CFSRB does not have jurisdiction to review them. These Issues/Concerns are dismissed.
26I find that Issue/Concern 4 is a service-related issue that can move forward in the CFSRB complaint process. The parties will be contacted to follow-up on next steps.
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.
Dated at Toronto, September 15, 2022.
Daniel McSweeney
Daniel McSweeney
Member```