DH and DH v. Children’s Aid Society of Oxford County, 2021 CFSRB 56

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

DH and DH Applicant

-and-

Children’s Aid Society of Oxford County Respondent

DECISION

Adjudicator: Michele O’Connor

Date: August 20, 2021

Citation: 2021 CFSRB 56

Indexed As: DH and DH v Children’s Aid Society of Oxford County (CYFSA s.120)

APPEARANCES

DH and DH, Applicant Self-represented

Children’s Aid Society of Oxford County, Respondent Ms. Giselle Lutfallah, Representative

Introduction

1D.H. and D.H. (“the Applicants”) filed an application against Children’s Aid Society of Oxford County (“the Respondent”/”the Society”) on November 17, 2020 under sections 120(4)4 and 5 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1, (the Act).

2The application, as originally filed, contained allegations and concerns relating to the Respondent’s failure to give the Applicant an opportunity to be heard and failure to give reasons for its decisions. The Respondent and the Applicant subsequently engaged in a mediated settlement during which some of the Applicant’s issues were managed and/or resolved.

3Following the Pre-hearing on December 18, 2020, it was determined that there would be a hearing with respect to the Applicants’ remaining allegations, specifically:

a) the Respondent escalated the referral from the children’s school to a child protection application with the court in response to the Applicant’s letter sent to the Respondent on December 7, 2019;

b) the Respondent failed to communicate with the Applicants regarding the referral until the first court date; and

c) the Applicants were concerned that issues of race may have contributed to their not being heard by the child protection worker.

4The CFSRB must decide whether the Society met its obligations regarding the Applicants’ complaints – were they given an opportunity to be heard, and were they given reasons for decisions that affected their interests.

5A hearing held by video-conference on March 11, 2021 was subsequently declared null and void as the CFSRB member who presided over the hearing was unable to render a decision.

6The re-hearing was held on July 21, 2021. I heard evidence from the Applicants and LF. On behalf of the Society, I heard evidence from the Child Protection Worker, MA (“the investigating worker”), and from Child Protection Worker, SH (“the ongoing worker”). Documentary evidence was filed by both parties.

7For the following reasons, the CFSRB finds that the Society did not give the Applicants an opportunity to be heard, nor did it provide satisfactory reasons for its decision to escalate the matter to a Protection Application before the court.

BACKGROUND

8The Applicants are the parents of two sons. LH at the time of the hearing was 11 years old, and AH was 8 years old. When the Society intervened in 2019, the children were students at an elementary school in a small town in southwestern Ontario. The family had moved there in 2017 from their home in the GTA because housing was more affordable, and they wanted to be closer to Mrs. H’s mother who lives nearby. The Applicants are a mixed-race couple and Mrs. H reported experiencing various micro-aggressions in her day-to-day life in this community.

9In the fall of 2019, the children’s school reported to the Society concerns regarding the parents’ ability to meet the children’s academic, social and developmental needs and a history of removing the children from school as a response when struggles arose between the parents and the school. The Society started an investigation on October 29, 2019, and it commenced a Protection Application in early 2020. The OCL was appointed for the children. The Protection Application was withdrawn in April 2020 after the Society and the parents signed a Voluntary Service Agreement. A new worker was assigned and the file was closed in August of 2020.

ANALYSIS

10The relevant provisions of the Act” are set out below:

Section 120(4) of the Act provides:

The following matters may be reviewed by the Board under this section: …

4. Allegations that the Society has failed to comply with subsection 15(2);

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

Section 15(2) provides:

Service providers shall ensure that children and young persons and their parents have an opportunity to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.

Section 120(7) of the Act provides:

After reviewing the complaint, the Board may:

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation;

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

(e) dismiss the complaint.

11In PO v. Family and Children’s Services Niagara 2012 CFSRB 38 at paras. 14 -15, the CFSRB described the purpose of provisions equivalent to s.120(4)4 and 5 of the Act in its predecessor legislation, i.e., sections 68.1(4) 4 and 5 of the Child and Family Services Act, RSO 1990, C.11, as follows:

The obligations under s.68.1(4)4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to, or accept decisions.

To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels her concerns are taken seriously and dealt with thoroughly.

12This description of the purpose applies to the current legislative scheme. Moreover, the right to reasons under the Act means a right to a meaningful explanation about decisions that affect the applicant’s interests. In JG v Windsor Essex Children’s Aid Society, 2013 CFSRB 8, the CFSRB held that:

With respect to s.68.1(4)5 (now s.120(4)5), what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A parent must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

13The Act does not mandate or permit the CFSRB to make determinations as to the clinical wisdom or validity of decisions made by the Respondent and for which the Respondent is giving reasons under s.120(4)5.

ISSUE 1 The Respondent escalated the referral from the children’s school to a child protection application with the court in response to the Applicant’s letter sent to the Respondent on December 7, 2019

14The Applicant testified that she received a telephone call from MA, the investigating worker, on November 5, 2019, while driving. The worker wanted the parents to attend at the Society office to discuss why the parents refused to sign an SE4 Form pertaining to her son AH. The SE4 is a “Special Education Services and Supports Letter of Notification/Permission”. The worker did not disclose that she had already attended the school on November 4, 2021, and interviewed the children.

15The parents had already discussed this form with the school principal and had sent him an email on September 23, 2019, setting out their reasons, i.e. that, since it was a blanket form and the school had not yet specified which tests would be done, they would prefer not to have their children tested numerous times for various things. They felt that the children needed time to acclimatize to the school and they were still coping with 2 recent deaths in their family. The principal emailed back the same day advising them there was no problem.

16The Applicant mother asked the investigating worker if there were concerns other than academics. The worker spoke of a need for speech therapy. Since her son has visual issues this made no sense, so the Applicant mother asked for a written description of the issues of concern before agreeing to a meeting. She then contacted the principal who told her that he had no knowledge of the CAS referral – “anyone could have called”. This served only to increase the Applicant’s concerns about the legitimacy of the call.

17The children continued to attend school until the Applicants received the Society letter on November 26, 2019. It stated simply that the Society had received a report and the worker needed to meet with them. Despite the Applicant mother’s prior request for details, none were provided.

18The Applicants contacted the number referenced in the worker’s letter on or about November 29, 2019. They asked for a call back. No one responded. They sent a registered letter to the Executive Director on December 7, 2019, and again received no response. Their next contact from the Society was when they were served with the Protection Application on February 2, 2020, with a first appearance scheduled for March 3, 2020. The Society was seeking a 6 month order of supervision with terms.

19After the letter from the Society, the parents emailed the principal advising that that they would keep the children at home until the CAS matter resolved and they met with him for 45 minutes when they attended at the school to pick up the children’s things. During that meeting he admitted he was aware of the report to CAS and felt the children would benefit from some academic supports. The Applicants advised him that their lawyer had recommended keeping the children with them until the matter with the Society was resolved. Over the period of the children’s enrollment, the parents had 4 meetings with him. When the children did not resume school in the new year, the principal notified the police who contacted the Society. The worker advised the police officer that the CAS was involved and the matter was going to court. The Applicants do not understand why the principal called the police and any prior trust with the school was breached by his actions in this regard.

20On January 19, 2020, the Applicants were contacted on a “cold call” by attendance counsellor from the school board, MB. She proposed moving the children to a different school and offered to “mediate” between the parents and the Society. With trust between them and the school eroded, the Applicants did not see this as an appropriate resolution.

21In her testimony, the investigating worker said the initial report from the school was that both children were behind academically, the younger child did not know his colours and letters and the parents refused supports for him, the parents had sent a number of emails to the school complaining about teachers, the children had been in 4 different schools and home-schooled, and they were not permitted to participate in meals or outings. This was perceived by the Society as a form of neglect. The initial coding for the investigation was the caregivers’ refusal to consent to treatment which the worker interpreted as risk of harm by omission with respect to the emotional and mental needs of the children. On November 4, 2019, the worker met with the children and spoke with school staff. Her recorded observation after meeting with the children was that there were “no child protection concerns”. The following day she contacted the Applicant mother by telephone. She introduced herself and explained the concerns to which the Applicant responded that it was a parent’s right to not put their child in special education. She expressed some concern about her son being left-handed and the school was insisting he use his right hand. She then said she was not comfortable discussing these things with the worker, requested a written explanation and would be contacting a lawyer. That was the end of the conversation.

22The investigating worker acknowledged her failure to return the Applicant’s message of November 29, 2021, and she said the Applicant’s letter of December 7, 2019, “fell through the cracks”. She had no contact with the Applicants apart from her initial telephone call and her letter in November. In her view, she was unable to successfully engage with the Applicants to complete a through assessment and provide support. She felt the parents disputed the concerns regarding the academic, social and developmental needs of both children, had a history of removing the children from school, and were unwilling to meet with her, so a more intrusive approach was necessary. She had a legal consult and commenced the child protection proceedings. On January 10, 2020, the principal told the worker that the children had not returned to school. He contacted the police the same day and forwarded the Applicant’s email to the worker.

23In response to questions from the CFSRB member, the worker agreed that her “verification decision” was based solely on information from teachers and the principal., and she had no explanation for deviating from the normal process of hearing both sides before bringing a protection application. She said she “appreciates that is a problem here”. She was unaware that the parents had met with the principal 4 times between September and November and there was no discussion of the quality of those interactions.

24I find that the Society failed to give the Applicants an opportunity to be heard and failed to give the Applicants reasons for its decision to commence child protection proceedings against them. The worker denied that the protection application was in response to the Applicant’s letter of December 7, 2019, and I can find no direct link in the evidence in that regard. However, there is no doubt that the decision was made after a legal consult in December, and there is no doubt that the parents were not heard, were not given reasons for the decision to lodge the protection application and were not given the opportunity to be heard.

Issue 2 The Respondent failed to communicate with the Applicants regarding the referral until the first court date

25The evidence outlined above regarding Issue 1 applies to this issue as well.

26I also heard evidence from the ongoing worker SH. She was assigned to work with the Applicants on April 27, 2020, after the Voluntary Service agreement was signed and the protection application was simultaneously withdrawn from court. Her evidence confirmed that the family “really opened up and worked well” with her. She made extensive efforts to be open and transparent with them. She communicated with them by email as requested, followed up each meeting with a written summary of what had transpired to ensure she had understood their concerns and encouraged them to address any misinformation in her summary. They met with her on request and their paediatrician confirmed that the “assessment” recommended by the school (and incorporated into the VSA) would not be beneficial for their child, AH.

27On August 27, 2020, the ongoing worker provided the Applicants with a detailed closing summary so they could know precisely what information would be documented about their family upon closing the file. She testified that this was not the typical process, but she thought it was important for them to end their work with the same transparency as during their time working together. In that closing summary she noted her concern that the Applicant’s trust issues with the school system might result in communication issues with school staff in the future “as their fear could possibly be misinterpreted as an unwillingness to cooperate or engage with services.” So she worked with them on strategies to feel empowered and stressed the need for them to work with the school regarding the children’s special needs, particularly that AH may suffer from a learning disability. And because of the importance that they have a positive experience, she and her supervisor recommended that the family connect with a clinic in London Ontario for academic support.

28I find on the evidence that the Society failed to make reasonable efforts to engage with the Applicants prior to bringing the matter to court, and there was no responsible attempt at communication with them until the ongoing worker was assigned.

Issue 3 The Applicants were concerned that issues of race may have contributed to their not being heard by the child protection worker

29The Applicant mother testified that they are a are a mixed- race family and she described the town as a “racially contentious area” where she experienced frequent micro-aggressions. She found the investigating worker’s approach condescending and dismissive and said “It’s hard to believe it was not motivated by prejudice”.

30Both workers specifically denied any racist behaviour or comments. The Applicant’s evidence was that when the investigating worker came to their home for the final investigation visit agreed to in the VSA, she made the statement “If you had a toddler or a newborn we’d be even more involved”. The Applicant mother took this to mean that “She didn’t want us to procreate”. Her mother, LF, testified that she was present for both encounters between the Applicant mother and the investigating worker. She was asked if she observed any racism. Her response was “Nothing specific”, but she agreed with her daughter’s perception of the worker’s comment about having younger children as being threatening. With the ongoing worker, SH, the Applicant mother felt they had a chance to talk with her about their fears and concerns and experiences in the community.

31While I do not question the Applicant mother’s perceptions, there was no direct evidence upon which I can conclude that racism played any part in the Society’s involvement with this family.

DECISION

32Regarding both Issues 1 and 2, I find that the Society failed to give the Applicants the opportunity to be heard or to give them reasons for its decision to proceed to court. Its investigation was seriously flawed. The Applicants deserve an apology and an acknowledgement that it ought to have conducted this investigation in a more professional and sensitive way with both parents being given the opportunity to understand the purpose and nature of the Society’s involvement in their lives.

33Additionally, the Society did not provide the Applicant with satisfactory reasons for its decision to commence court proceedings before at least meeting with the Applicant parents. The test in J.W. v. Windsor Essex CAS (cited above) has not been met. The Applicants were not given sufficient information regarding the factors taken into account by the Society to allow them to understand why and how this decision was made. An explanation is required.

34Regarding issue 3, I find that there was insufficient evidence to conclude that the flawed investigation was motivated by racism.

ORDER

35Within 30 days, the Society shall provide a letter to the Applicants containing the following:

a. An apology to the Applicants for the Society’s failure to conduct a full and thorough investigation before putting this family before the child protection court;

b. A clear and understandable explanation for the Society’s failure to respond to the Applicants’ message requesting a call back and for its failure to respond to the Applicant’s letter of December 7, 2019; and

c. An explanation of which factors the Society considered when it decided to proceed with a protection application based solely on the community report and in the absence of any apparent urgency without ever speaking to or seeing the Applicants to hear their side of the story?

Confidentiality Order

36Pursuant 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.