CY v. Bruce Grey Child and Family Services, 2019 CFSRB 3

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

CY Applicant

-and-

Bruce Grey Child and Family Services Respondent

DECISION

Adjudicator: John F. Spekkens Date: February 12, 2019 Citation: 2019 CFSRB 3 Indexed as: CY v Bruce Grey Child and Family Services (s.120 CYFSA)

APPEARANCES

CY, Applicant Self-represented

Bruce Grey Child and Family Services, Respondent Jane Robertson, Counsel

INTRODUCTION

1CY (the “Applicant”) and the Bruce Grey Child and Family Services (the “Respondent”) entered into a Settlement Agreement (the “Agreement”) during a mediation held on August 10, 2018, providing for a full settlement of all issues raised by the Applicant in his application dated February 18, 2017, to the Child and Family Services Review Board (the “CFSRB”).

2The Agreement contained three Terms, expressed as questions to the Respondent, which sought reasons and/or explanations from the Respondent. The parties agreed to a compliance date of September 10, 2018 and a non-compliance date of September 17, 2018.

3The Respondent sent a letter (“the Letter”), dated October 23, 2018, as its Response to the issues raised in the Agreement. The Letter was addressed to the Applicant and to the CFSRB.

4The Applicant advised the CFSRB that he alleged non-compliance because he had not received any communication from the Respondent by the date when the Response was due.

5Between the date of compliance (September 10, 2018) and the date of the Letter (October 23, 2018), no communication was received by the Applicant or by the CFSRB from the Respondent requesting an extension or offering an explanation or reasons for the delay in responding.

6In accordance with the CFSRB’s procedures when there is an allegation of non-compliance, the CFSRB held a hearing by teleconference (“the Teleconference”) on January 25, 2019 to determine whether the Respondent had complied with the Agreement.

DECISION

7After reviewing the materials submitted by the parties, and hearing their arguments, I find that the Respondent did not meet its commitments with the timing of its Response and thus is non-compliant with regard to the Agreement.

8The Response was some 6 weeks late. The Applicant deserved a timely response. However, I am satisfied the delay did not prejudice the Applicant’s interests. No useful or practical remedy can be ordered on this aspect of the claim.

9Notwithstanding the non-compliance as to timeliness, I find that the individual responses of the Respondent to the three Terms of the Agreement did meet the Respondent’s obligations as required by the Act. The reasons for these findings follow.

PRELIMINARY MATTER

10The Applicant raised concerns about a breach of the Agreement's confidentiality provisions. He noted that counsel representing the Respondent in the Teleconference was not counsel who appeared at the mediation. He felt that the confidentiality agreement might not apply to this counsel or other Respondent counsel who had been involved with his Application after the mediation.

11In addition, the Applicant said that he had previously spoken with counsel for the Respondent, when he was seeking counsel about representing him in previous court proceedings.

12In response, the Respondent's counsel said that she had no recollection of ever having spoken with the Applicant, and therefore had no recollection of anything that the Applicant may have told her about his case.

13Confidentiality agreements in proceedings at the CFSRB are between two parties, rather than amongst a group of individuals. The parties to an application to the CFSRB, and the parties to any settlement achieved, are an applicant and a respondent children's aid society or family services organisation. Everyone working for that organisation is bound by the confidentiality agreement.

14However, in view of the Applicant’s concerns, the parties agreed to add an addendum to the confidentiality agreement confirming counsel's requirement and commitment to confidentiality. Copies of the addendum will be shared with all parties. This addendum also applies to any other Respondent counsel who have participated on this matter. The Applicant and the Respondent’s counsel were both satisfied with this arrangement.

15For reasons already set out above, any representative of the Respondent is bound to the terms of the confidentiality agreement with the Applicant.

ANALYSIS

16The Child, Youth and Family Services Act, 2017 S.O. 2017, Chapter 14, Schedule 1 (the “Act”) outlines the Respondent’s obligations and the mandate of the CFSRB. Section 120 reads as follows:

(4) The following may be reviewed by the Board under this section:

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

(7) After reviewing the complaint, the Board may,

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint

17The Act does not mandate or permit the CFSRB to make a determination as to the clinical wisdom or validity of the decision made by the Respondent in the given situation under review by the CFSRB and for which the Respondent is giving its reasons under this section of the Act. This limitation on the CFSRB mandate is explained to every applicant at mediation, and was re-iterated during the Teleconference.

Terms of the Agreement

Term 1: Regarding the allegations of spousal assault of KK (see letter from the Society March 20, 2017, page 2 of 4, 3rd and 4th bullet points):

a) Why did the Society deem there to have been an assault by the Applicant on KK?

18The Letter stated that there was a referral in early 2005 from an outside source, giving the Respondent information about an assault, and the referral further claimed that the subject of the referral had been sentenced to time in jail. This information led the Respondent to investigate. The Respondent concluded at that time that there was not an at-risk situation involving the child, and did not pursue the matter further. The Respondent’s written response concluded with the following: “The Society’s understanding was thus based on referral information that it received at the time.”

19The Applicant stated that he never abused his ex-partner, and that his jail term was the result of a conviction for fraud, not spousal assault. He maintains that the Respondent came to its conclusions on information that was not correct.

20I find that on Term 1a, the Respondent’s reasons explained the limits of its investigation at the time and determined a child was not at risk. This portion of the complaint is therefore dismissed.

Term 1b: The Applicant alleges to not have heard or seen any information on this alleged assault prior to receiving the above referenced letter; why was this information not shared with him on a prior occasion during the period from August 2005 till March 2017?

21The Letter states that the Respondent did not have knowledge of what the Applicant saw or did not see from 2005 to 2017. The Letter also explains that: “Referral information that is provided by third party sources that are relevant to information not pertaining to the Applicant may not be produced without the consent of the third party or the persons that are the subject of the referral.”

22As stated in the response to Term 1a, at the completion of an investigation, there may be a number of issues that are not further explored or followed up, once an absence of risk to the child involved is established.

23I find that on part b) of Term 1, the Respondent did give the reason for its actions, and explained the limits of its investigation at the time when it determined a child was not at risk. This portion of the complaint is therefore dismissed.

Term 1c: In view of the undated letter to the Applicant from the Freedom of Information and Protection of Privacy Services, received by the Applicant approximately in May 2017, which appears to say there was no assault leading to incarceration, would the Society acknowledge that its source of this alleged assault on his ex-partner was in error, and correct the Society’s record? If not, why not?

24The Letter explained that it does not have jurisdiction to determine whether the FIPPS letter dated July 27, 2017 is correct or not. It re-iterated the same point as well about not being in a position to verify the correctness of the original 2005 referral.

25In anticipation of the Applicant being upset by the contents of the referral information being in the provincial central database, the Letter explained that it had uploaded the FIPPS letter into this database, so that any future reader of the file would see that the accuracy of the 2005 allegation is not proven and in fact is strongly challenged by the Applicant. Thus, the FIPPS letter is now part of the Respondent’s record.

26I find that on Term 1c, the Respondent did give the reason for its actions, and explained how it handled the Applicant’s concerns about what he believes to be serious errors that are damaging to his reputation. This portion of the complaint is therefore dismissed.

Term 2: Regarding the allegation of “violent behaviours” of the Applicant (same letter of March 20, 2017, page 2 of 4, first bullet point): In view of the July 27, 2017 letter from the Freedom of Information and Protection of Privacy Services, which appears to say that there was no violent behaviours, would the Society acknowledge that its source of this allegation of violent behaviours was in error, and correct the Society’s record? If not, why not?

27During the hearing it was recognized that Term 2 is substantially a repeat of the issue in Term 1c. The Letter indicated that its answer to Term 2 was identical to its answer to Term 1c.

28It was agreed that this Term would not be reviewed or discussed again, in view of its similarity to Term 1c.

Term 3: Regarding the Applicant’s expressions of concern (same letter, page 2 of 4, 4th bullet point, line 3): why did the Society not get back to the Applicant about the concerns he had expressed to the Society “about the care being provided to his child by his ex-partner”?

29The Respondent’s letter gave three reasons for not getting back to the Applicant. First, the Respondent advised in its Letter that it was the Applicant’s Probation Officer who was in touch with the Respondent as to this referral. Second, the information from the Probation Officer was in the form of recordings and was “historical and not of a child protection concern, and that these letters did not disclose any child specific concerns”. Third, since the Respondent was not contacted directly by the Applicant about the letters and recordings, the Applicant was not owed any explanation or contact by the Respondent at the conclusion of the investigation, once it was determined that the investigation did not reveal any child-at-risk issues. As well, in a general way, the Respondent wrote as follows in the Letter: “Every information referral is considered by the Respondent, and may or may not lead to a child protection investigation. An investigation may or may not involve interviewing parties or the person that provided the information referral.”

30The Applicant disagreed with the reasons given by the Respondent, and questioned the veracity of comments made by the supervisor of the staff member involved.

31I find that on Term 3, the Respondent gave adequate reasons for its actions. The Respondent explained how it handled the Applicant’s concerns about what he believes to be inadequate practices in the method by which the Respondent investigates referrals, and its absence of follow-up with the relevant persons once the investigation has reached a no-risk conclusion for the particular situation. This portion of the complaint is therefore dismissed.

ORDER

32For the reasons given I find the Respondent met its obligations to provide reasons for its decisions in accordance with the Agreement and the Act. Therefore, the CFSRB's file is closed as settled.

CONFIDENTIALITY ORDER

33Pursuant 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 on-line. 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.