AF v Children’s Aid Society of the District of Thunder Bay, 2023 CFSRB 72

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AF Applicant

-and-

Children’s Aid Society of the District of Thunder Bay Respondent

DECISION

Adjudicator: Daniel McSweeney Date: August 18, 2023 Citation: 2023 CFSRB 72 Indexed As: AF v Children’s Aid Society of the District of Thunder Bay (CYFSA s.120)

WRITTEN SUBMISSIONS

AF, 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 (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 Complaint eligible to proceed under section 120(4)4 of the Act: It is alleged that the Applicant was not given the opportunity to be heard and represented when decisions 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 daughter (the “Child”).

4In the Complaint, the Applicant alleged that her concerns regarding alleged physical abuse of her daughter at the hands of her father were not heard by Respondent staff. In addition, the Applicant alleged that Respondent staff failed to consider evidence of the abuse provided by the Applicant.

5In its Response to the Application, the Respondent indicated that the Applicant did not submit a formal complaint with the Respondent. In her communications with the Respondent, the Applicant indicated that she was seeking clarity and she did not mention that she was complaining about the services she received from the Respondent. As such, the Respondent argued that it did not have an opportunity to address the Applicant’s concerns. The Respondent suggested that it be given an opportunity to engage the Internal Complaints Review Process before proceeding with the CFSRB Complaint. The Applicant was directed to request disclosure through the Respondent’s Disclosure Department.

6The Applicant identified the following Issues/Concerns at the pre-hearing/mediation on June 7, 2023:

1. The Applicant was seeking an explanation of why or how the Society determined her child was not at risk of abuse; and
2. The Applicant was seeking a response on what supports the Respondent can provide to her daughter.

7The parties did not reach a settlement through the mediation process.

8At a pre-hearing videoconference on July 5, 2023, the Respondent argued that the issues in the Complaint were currently before the Court or had been decided by the Court, and are therefore excluded from review of the CFSRB pursuant to section 120(8) of the Act. The Respondent was directed to file written submissions in support of its position along with all relevant documents and Court orders. The Applicant was also directed to file written submissions in response to the Respondent’s submissions.

9The Respondent submitted that the CFSRB did not have jurisdiction to review the Complaint pursuant to section 120(8) of the Act as the Applicant has been and continues to be involved in Family Court proceedings that address the subject matter of her Complaint to the CFSRB. The Family Court in Thunder Bay has addressed the return of the Child to Thunder Bay to live in her father’s care. In addition, the allegations of physical harm and whether the Child was safe in the care of her father were issues which have been before the Court.

10The Applicant submitted that there was no dispute that the subject of her Complaint has been decided by the Court or are currently before the Court. The Applicant was concerned with whether the Respondent was carrying out its statutory mandate to promote the Child’s best interests and well-being. The Applicant’s Complaint related to the manner in which the Respondent delivered its services and its failure to address her concerns.

11The Respondent submitted a Reply to the Applicant’s Submissions clarifying what it found to be inaccurate statements and facts. In addition, the Respondent argued that the issue raised by the Applicant with the CFSRB was whether the Respondent erred in concluding the Child was not at risk of physical harm while in her father’s care. The Respondent argued that this issue was subject of a motion before the Family Court. The Respondent reiterated that the CFSRB therefore did not have jurisdiction to review the matter.

THE LAW

12Section 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

13The 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

14In assessing the Complaint, I reviewed a variety of documents from the parties including photos, police reports, e-mails, text exchanges, and letters. In addition, I considered the following Court documents:

• Final Order related to custody and access dated December 15, 2015
• Endorsement Sheet dated November 24, 2021
• Reasons for Judgement dated December 2, 2022
• Motion to Amend Order dated January 2, 2023
• Motion dated January 3, 2023
• Court Decision on Costs dated January 10, 2023
• Motion from Child’s Father dated January 20, 2023
• Affidavit from Child’s Father dated January 20, 2023
• Temporary Order dated January 20, 2023
• Affidavit from Applicant dated February 20, 2023
• Endorsement dated January 24, 2023
• Final Minutes of Settlement, April 5, 2023
• Consent of the parties regarding summer school, June 28, 2023

15My reading of section 120(8) 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.

16In this case, issues related to access, custody, and the well-being of the Child were placed squarely before the Court on several occasions since the allegations of abuse and neglect surfaced in January of 2023. For example, the Minutes of Settlement addressed custody and access between the parents, as well as the mental health of the Child. In addition, the Applicant submitted an Affidavit to the Court dated February 20, 2023, which addressed: the alleged physical assaults to the Child; police involvement and ongoing investigations; concerns regarding the Child’s well-being while in the care of her father; and photos of the Child’s bruises.

17The Court matters were concluded on April 5, 2023, during which the Applicant and the Child’s father signed minutes of settlement that required the Child to return to Thunder Bay on July 2, 2023, to reside with her father.

18I note that the Applicant was represented by Counsel throughout the various Court proceedings in 2023 during which the Applicant’s concerns related to abuse and the well-being of the Child were considered by the Court.

19Given the contents of the Applicant’s Affidavit and the Minutes of Settlement, I find that issues related to the alleged abuse of the Child by her father and the Applicant’s concerns regarding the well-being of the Child while in the care of her father were placed squarely before the Court. The Court was tasked to make a decision that is in the best interests of the Child, including the consideration of allegations of abuse and harm lodged against a parent. In this case, the Court found that it was in the Child’s best interests to return to live with her father.

20While the Court did not have evidence before it of the interaction between the Respondent and the Applicant, I find that the issues raised by the Applicant at Court were not separate and different from the issues raised by the Applicant in her Complaint. The Applicant had the opportunity to provide evidence to the Court in support of her allegations that the Child had been abused by her father; the same evidence that was considered by the Respondent. The reasons for the Court’s decision to have the Child remain in the care of her father would therefore not be dissimilar to the reasons that the Respondent would have provided for not finding that the Child was at risk of harm as both parties considered similar evidence and made findings based on the best interests of the Child.

DECISION

21For the reasons identified above, I find that the issues in the Complaint have been placed squarely before the Court and were decided by the Court. As such, the CFSRB does not have the jurisdiction to review the Complaint pursuant to s. 120(8) of the Act.

22The Complaint is dismissed in its entirety.

CONFIDENTIALITY ORDER

23Pursuant 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.