K-AC v. Children’s Aid Society of the Niagara Region, 2024 CFSRB 39

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

K-AC

Applicant

-and-

Children’s Aid Society of the Niagara Region aka Family & Children’s Services Niagara

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: April 09, 2024

Citation: 2024 CFSRB 39

Indexed As: K-AC v Children’s Aid Society of the Niagara Region (CYFSA s.120)

WRITTEN SUBMISSIONS

K-AC, Applicant

Self-represented

Children’s Aid Society of the Niagara Region, Respondent

Paul Heinen, Counsel

INTRODUCTION

1This decision relates to the fourth of five Applications the Applicant has submitted to the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).

2The Application was found eligible pursuant to s. 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 two children (the “Children”). The Children were taken to a place of safety by the Respondent in September 2022, based on concerns over the Applicant’s mental health and transiency. The Children were placed in foster care and later were placed in the temporary care and custody of their father in April of 2023. The Children’s father was granted sole decision-making responsibility for the Children pursuant to a Final Order of the Superior Court of Justice on January 4, 2024. As a result of the Final Order, the Respondent brought a motion to withdraw its Child Protection Application and requested that the existing Temporary Order be terminated.

4The Applicant raised the following concerns in her current Application:

1. The Applicant alleged that Respondent staff did not hear her concerns that it disregarded the results of a 2018 Durham Region investigation which was closed based on a finding that the Applicant was at low risk; and staff did not hear her concerns that the Provincial Data Base was not updated with the results of the Durham Region investigation;

2. The Applicant raised concerns regarding service and disclosure of court documents; including the Applicant’s request to have a “competent authority” attend Court;

3. The Applicant alleged that Respondent staff did not hear her request for file disclosure;

4. The Applicant alleged that her concern that an “unauthorized employee” was assigned to her file were not heard by Respondent staff;

5. The Applicant alleged that her concern that the Children were withheld indefinitely have not been heard by Respondent staff; and

6. The Applicant alleged that her request to have the case closed and her family’s names taken off the Provincial Data Base were not heard.

5In its Summary Response, the Respondent requested that the CFSRB dismiss the Application as the issues in the current Application continued to relate to issues before the Court. In addition, the Respondent argued that the Application repeated similar issues and concerns made in previous applications. These issues and concerns related to the Applicant’s belief that the Children were removed wrongly and without cause.

6In a March 1, 2024, Case Management Direction, the CFSRB directed the parties to provide submissions on whether the CFRSB should declare the Applicant a vexatious litigant pursuant to CFSRB Rules A8.1 and A8.2.

7The Applicant submitted that there are no current child protection concerns before the Court. The Applicant indicated that the Children’s Aid Society of Durham found no concerns with her parenting. The Niagara Court did not agree with the Respondent’s allegations of mental health concerns, transiency, and child abuse levied against the Applicant.

8The Applicant argued that the current Application related to the Respondent’s use of unauthorized staff to carry a child protection caseload or to make clinical interventions and recommendations. The Applicant stated that Respondent staff have mislead the Court in their evidence and submissions. Finally, the Applicant restated her desire to have her name and her family’s name taken off the Provincial Data Base.

9The Respondent submitted that the Applicant should be declared a vexatious litigant given that the 3 previous Applications raised similar issues and concerns. The 3 Applications were dismissed by the CFSRB for a variety of reasons including: the issues were raised before the Court or had been before the Court; the issues fell outside the jurisdiction of the CFSRB; and the Applicant was found not to have raised the social assistance payment issue with the Respondent before submitting her Application. The Applicant submitted a 5th Application which the CFSRB determined it had no jurisdiction to review as it related to preparation and use of documents for Court.

10The Respondent argued that the CFSRB has the jurisdiction to declare an Applicant a vexatious litigant and dismiss an application as an abuse of process. It indicated that 4 of the 7 Lang Michener Lash Johnston v. Fabian, 1987 172 (ON HCJ), [1987] O.J. No. 355 factors were applicable to the case at hand. The core issue in each of the 5 Applications has been before the Courts and has focused on the Applicant’s belief that the removal of the Children was unlawful. The Courts addressed issues related to the Respondent’s investigation of the child protection concerns; the decision to remove the Children; the evidence before the Court; the Children’s current placement; and the Children’s access with their father. As such, the Applicant is rolling forward, repeating, and supplementing the same grounds in her various Applications.

11The Applicant has also put forward allegations for which the CFSRB has no remedial authority. Finally, the Respondent argued that the Court has issued Final Orders in CYFSA and Divorce Act proceedings related to the Applicant and the Children. The principal of finality should be upheld by the CFSRB.

THE LAW

12Rule A8.2 of the CFSRB Rules of Procedure states:

Where the tribunal finds that a person has persistently instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the tribunal may find that person to be a vexatious litigant and dismiss the proceeding as an abuse of process for that reason. It may also require a person found to be a vexatious litigant to obtain permission from the tribunal to commence further proceedings or take further steps in a proceeding.

13The leading decision on the factors that courts have considered in determining whether an individual is a vexatious litigant were described by the Ontario Court of Appeal in Foy v. Foy (No.2), 1979 1631 (ON CA),. These factors are summarized in Lang Michener Lash Johnston v. Fabian, [1987] O.J. No .355 (H.C.), paragraph 19 (“Lang Michener”):

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

g) the Respondent’s conduct in persistently taking unsuccessful appeals from

judicial decisions can be considered vexatious conduct of legal proceedings.

14The CFSRB concluded in DP v. Children’s Aid Society of Hamilton (CFSA s. 68), 2017 CFSRB 30 (DP), a decision maker ought not to conclude that the inclusion in an application of allegations that have been previously litigated automatically constitutes an abuse of process. Rather, the decision must engage in a contextual analysis that takes into account all of the relevant factors and balances the interests of the parties in order to arrive at a just outcome overall.

15Toronto (City) v. CUPE Local 79, 2003 SCC 63 (CUPE) establishes that the abuse of process doctrine precludes re-litigation that would violate such principles as judicial economy, consistency, finality, and the integrity of the administration of justice, while recognizing that fairness may dictate that re-litigation be permitted in certain circumstances: See CUPE, above, at paras.

APPLICATION HISTORY

16The Application has submitted 5 Applications in relation to her dealings with the Respondent. The Applications are as follows:

Application

Issues/Concerns in Application

CFSRB Decision

1 CA22-0109

• Respondent did not provided reasons for apprehension

• Respondent did not hear concerns and evidence regarding apprehension

• Respondent did not hear concerns regarding Children’s health, safety, and education during their foster placement

• Concerns regarding reduced and supervised access not heard by Respondent

• Concerns regarding violation of rights not heard by Respondent

• All issues were issues before the Court

• Application dismissed

Application

Issues/Concerns in Application

CFSRB Decision

2 CA22-0109

• The Respondent did not hear the Applicant’s argument that the removal of the Children was unlawful and was done without a complete investigation

• The Respondent fraudulently redirected the Applicant’s welfare payments to the foster parent

• The Respondent did not hear the Applicant’s concerns that Workers falsely accused her of being a bad mother based on malicious gossip

• The Respondent did not hear the Applicant’s concerns that the Children had suffered emotional distress by being removed and having access to their mother restricted

• The Respondent did not hear the Applicant’s concerns that the removal of the Children was illegal as it was done without a warrant

• The Respondent did not hear the Applicant’s concerns that decisions regarding the Children’s schooling and care were being made without her involvement

• All issues except the issue regarding welfare payments were dismissed for lack of jurisdiction as they were issues that were before the Court

• Welfare issue reviewed in writing

• Welfare issue dismissed as the Applicant had not raised this issue before including it in her Application to the CFSRB

3 CA23-0124

• Respondent did not hear the Applicant’s concerns that the Children should not have been removed and should be returned to her care

• The Respondent did not attend Court dates or meetings

• The Respondent did not assign staff to investigate concerns raised in previous applications

• Application placed on hold on Applicant’s request

• Application dismissed as it repeated past allegations and any concerns related to Court proceedings fell within the jurisdiction of the Court and not the CFSRB

4 CA24-0023

See allegations outlined above

See current reasons below

5 CA24-0027

• Respondent did not hear the Applicant’s concerns regarding information in documents provided to the Court

• Respondent did not hear the Applicant’s concerns regarding fraudulently commissioned documents presented to the Court

• Dismissed as issues not eligible for review by CFSRB as they dealt with the preparation and use of documents for Court purposes and not a service provided to the Applicant under subsection 2(1) of the Act

ANALYSIS

17I considered two issues in relation to this Application:

Did the CFSRB have jurisdiction to address the Issues/Concerns in the current Application?

Should the Applicant be declared a vexatious litigant?

Jurisdiction to Address Current issues/Concerns

18I reviewed the 6 Issues/Concerns in the current Application. I found that the CFSRB did not have the jurisdiction to review all the Issues/Concerns for the following reasons.

19Firstly, I find that Issue/Concern 1 dealt with the Applicant’s concerns relating to the investigation and the Respondent’s actions following the investigation. As noted in the table above, allegations related to the removal of the Children and the Respondent’s actions were placed squarely before the Court on several occasions. The Court has made decisions regarding the removal and what is in the best interests of the Children. As such, the CFSRB cannot review these Issues/Concerns pursuant to section 120(8) of the Act.

20Issue/Concern 2 dealt with the Respondent’s disclosure of documents at Court, and the Respondent’s representatives at Court. These issues fall outside the CFSRB’s jurisdiction as they deal with Court proceedings.

21Issue/Concern 3 related to file disclosure. The CFSRB does not have jurisdiction to address issues of file disclosure. Requests for disclosure fall within the purview of the Office of the Information and Privacy Commissioner.

22Issue 4 related to a human resource issue. The CFSRB does not have the jurisdiction to address human resources issues, and no remedy exists under section 120(7) of the Act to address such issues.

23Issue/Concern 5 dealt with the Children’s placement. This Issue has been decided by the Court. As such the CFSRB does not have the jurisdiction to review this Issue pursuant to s. 120(8) of the Act.

24Issue/Concern 6 fell outside the CFSRB’s jurisdiction. Placement of names on the Provincial Data Base is the sole responsibility of child protection agencies. Under s. 120, the CFSRB does not have the jurisdiction to challenge or overturn a child protection decision.

25Based on my analysis above, all the Issues/Concerns in the current Application have been decided by the Court or fell outside the jurisdiction of the CFSRB. As such, the Application is dismissed in its entirety.

Vexatious Litigant

26I turned my mind to whether the Applicant’s 5 Applications to the CFSRB placed the Applicant in the position of being a vexatious litigant.

27After having reviewed the evidence before me, the submissions, and the jurisprudence, I grant the Respondent’s request to have the Applicant declared a vexatious litigant.

28The Applicant’s submissions on the issue of whether she was a vexatious litigant focused on existing or new allegations. As such, the submissions were not helpful in assessing whether the Applicant’s actions were vexatious.

29The Respondent argued that factors (a), (b), (d), and (e) in the Lang Michener decision (see above) were the most applicable to the Applicant’s history of CFSRB Applications. The Respondent argued that the subject matter of the 5 Applications had been decided by the Court. The Respondent argued that the Applications sought to support the Applicant’s argument that the removal of the Children was unlawful. The Applicant has included issues/concerns for which the CFSRB has no jurisdiction or remedy pursuant to s. 120(7) of the Act e.g., taking her name off the Provincial Child Protection Data Base. The Respondent submitted that it was probable that the Applicant would continue to make Applications and seek remedies that are not available to her through the CFSRB given that the child protection and Divorce Act proceedings have concluded. Finally, the Respondent argued that the principal of finality should be upheld by the CFSRB.

30My review of the 5 Applications (see Table above) confirms that all but one of the Issues/Concerns in the 5 Applications were dismissed as their subject matter was before the Courts, or for which the CFSRB did not have jurisdiction. The only issue that moved forward to a decision related to Application 2 (welfare payments) and the CFSRB dismissed the allegation given that the Applicant failed to raise the allegation with the Respondent before she submitted the Application.

31The Applicant has continued to raise Issues/Concerns that have been addressed by the Courts. The CFSRB has found that issues related to the removal of the Children; their health and safety; and custody and access fall outside the CFSRB’s jurisdiction and are exempt from review pursuant to s. 120(8) of the Act. In addition, the Applicant’s concerns with evidence and witnesses at Court fall within the purview of the Court and not the CFSRB. As such, I find that each of the 5 Applications has raised Issues/Concerns which have been determined by the Courts.

32The Applicant has also raised issues for which the CFSRB has no jurisdiction and for which no remedy is available under s. 120(7) of the Act. For example, the CFSRB cannot order the disclosure of documents; cannot address the Applicant’s concerns with staff assigned to her file; and cannot make an order to have the Applicant removed from the Provincial Data Base. It is obvious that the Issues/Concerns for which the CFSRB has no jurisdiction cannot succeed in relation to these issues, as no relief is available to the Applicant under s. 120(7) of the Act.

33I note that the Applicant has also rolled forward allegations in Applications which were dismissed in previous Applications. For example, she continued to argue in subsequent Applications that the removal of the Children was unlawful.

34All the Applicant’s allegations in the 5 Applications have been dismissed by the CFSRB. When viewed in their totality and in context, the 5 Applications seek to challenge the Respondent’s decision and authority to remove the Children. The CFSRB has dismissed issues related to the removal of the Children as these issues have been heard by the Court. Despite this, the Applicant has continued to use the CFSRB process to have the Respondent’s decision overturned.

35I concur with the Respondent on the issue of finality. The child protection proceedings under the Act, and the Divorce Proceedings have concluded at Court. As such, the CFSRB must uphold the principle of finality. Bringing forward issues which have been decided by the Court violates the principle of finality as outlined in CUPE above.

36Given that the Applicant has consistently raised issues that have been before the Court and has raised issues for which the CFSRB does not have jurisdiction, I am satisfied that the Applicant has instituted vexatious proceedings against the Respondent. It is therefore appropriate to declare her a vexatious litigant and require her to obtain permission from the CFSRB before filing any future applications.

CONFIDENTIALITY ORDER

37Pursuant 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 these Applications 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.