CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
DC
Applicant
-and-
Simcoe Muskoka Child, Youth and Family Services
Respondent
DECISION
Adjudicator: Martina Dwyer
Indexed As: DC v Simcoe Muskoka Child, Youth and Family Services (CYFSA s.120)
WRITTEN SUBMISSIONS
DC, Applicant
Self-Represented
Simcoe Muskoka Child, Youth and Family Services, Respondent
Karen O’Keefe, Counsel
INTRODUCTION
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”).
2On June 6, 2023, the CFSRB found the Application was eligible to proceed under sections 120(4)4 and 120(4)5 of the Act. On June 14, 2023, the Respondent responded to the Application. It was submitted by the Respondent that the concerns set out in the Application were the same concerns that were set out in the Applicant’s affidavits before the Court in the Child Protection Proceedings. This raised the question as to whether the CFSRB is barred from reviewing the Application by section 120(8)(a) of the Act. The Respondent listed several documents from the current Court proceeding but did not provide copies of the documents.
3The face of the Application suggests that the issues are in fact currently before the Court. Under Question 9 of Applicant’s Application, it refers to whether the concerns expressed by the Applicant were being dealt with by the Court. The Applicant answered in the affirmative. Under Section 10, the Applicant answered that the concerns were currently before the Court.
4Given the above and the Respondent’s assertion that the CFSRB has no jurisdiction, on June 19, 2023, the CFSRB provided a Case Management Direction to the parties. On or before June 26, 2023, the Respondent was to provide copies of documents referred to in the Application pursuant to Rule 21.2. of the CFSRB’s Rules of Procedures. The Applicant was to also provide written submissions on or before July 10, 2023, on whether the issues in this Application were separate and different from the substantive issues before the Court. The Applicant failed to respond to this request.
5On July 20, 2023, the Applicant wrote to the Respondent with concerns regarding the Child Protection Proceedings that were before the Court. The Applicant alleged that the Child Protection worker omitted information regarding a Court Order. The Applicant attached one part of what appears to be a consent Order and an Endorsement that stayed a proceeding brought under the Children’s Law Reform Act, R.S.O. 1990, Chapter C.12 due to the commencement of protection proceedings.
6Further to this on July 25, 2023, the Applicant wrote to the Respondent and indicated that his former spouse did not provide documents and the Respondent did not do any random checks on the children and just accepted that mother’s word. The CFSRB reviewed this new information and found that it was not relevant to the issues in this Application. This new information provided no insight regarding whether or not the matters placed before the CFSRB were substantive issues that the Court had or was dealing with.
BACKGROUND
7The Applicant and the mother of two male children (the “children”) are parties to a Protection Application that has been before the Court since in or around March 2022.
8The Applicant identified the following concerns in his application in paragraph six as follows:
a. The mother was caught breaching a Court Order by allowing the children to be alone with their stepbrother that allegedly sexually assaulted his younger sister. The mother had kept the children out of school for 30 days as she wanted to be with her boyfriend. The mother resided with her mother who also allowed this to happen.
b. The Respondent attempted to assign the case to a family friend in a small Society office.
c. The mother’s boyfriend and her parents were approved by the Respondent as supervisors for the mother, who knew about the directive that there should be no contact with the stepbrother and allowed this to happen for a period of one-and one-half years.
d. The Respondent child protection worker ignored the statements allegedly made by the children to the Applicant about being left unsupervised by their mother with their stepbrother and being hit by him. The Applicant tape recorded some of the children’s statements and was told by the Respondent not to talk to the children about these allegations.
e. The children were placed by the Respondent with the Applicant in March 2022. The Respondent sought a six-month supervision order. The Applicant was advised that the Respondent had intended to return the children to their mother without any appropriate transition period for this placement.
f. The Respondent accepted what the mother told them without any scrutiny despite the mother allegedly being found to have obstruction of justice charges against her.
g. The Respondent refused to seek an Order for an appointment for a lawyer for the children.
h. The Respondent would not assign workers in the region that he is presently residing.
i. The Respondent did not take into consideration the wishes of the children that they wished to reside with the Applicant.
j. The Respondent did not record multiple assaults on the children by their stepbrother including knocking out one of the children’s teeth, suffocating and attempting to drown the children.
k. The Respondent did not consider that the boyfriend that was approved as a supervisor was charged with assault with a weapon during an alleged robbery with a drug dealer.
THE LAW
9Section 120(8)(a) of the CYFSA states:
The CFSRB 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.
10The 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
11I considered whether the CFSRB had jurisdiction to review the Applicant’s current Application. The matters before the Court are specifically set out below in this decision.
12As indicated, on its face, the Application suggests the matters at issue are before the Court. The Applicant failed to provide the responding submissions as directed in the Case Management Direction. As a result, I relied on the record before me.
13A review of the affidavits of the Respondent and the Applicant filed within the Protection Application reveal that all the issues in the Applicant’s Application before the CFSRB have been or presently are before the Court in the Protection Application. They include the allegations of the assignment of the case to a family friend of the mother, lack of supervision of the mother, the children being left alone with a step sibling who had allegedly sexually assaulted his younger sister, allegations of assault on the children, including attempts at suffocation and drowning. The obstruction of justice charge relating to the mother. Increasing access to the mother was part of the Respondent’s plan prior to returning the children to her care as the primary caregiver.
14In addition, the complaints relative to the children making statements with respect to allegations of abuse to the Applicant are also contained in the affidavits before the Court. The issue of the father video taping the children and asking them why they did not want to live with their mother and the Applicant being cautioned by the Respondent to not speak with the children in the matter is also before the Court.
15The Respondent had arranged for a worker from the Applicant’s region to be assigned to him. With regard to whether or not a lawyer for the children would be ordered by the Court, the Applicant made this request for such an Order in his affidavit for the Protection Application.
16In conclusion, after considering the comments of the Ontario Court of Appeal in the above noted case. A careful analysis and review of the specific concerns of the Applicant in this Application was done. I found that the issues are not separate and different from the matters before the Court.
DECISION
17The CFSRB finds that it has no jurisdiction to deal with the concerns as set out above since all those concerns have been or are being dealt with by the Court. The CFSRB is barred from reviewing the Application by section 120(8)(a) of the Act.
ORDER
18The Application is dismissed.
CONFIDENTIALITY ORDER
19Pursuant 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 01, 2023.
Martina Dwyer
Martina Dwyer
Member