BKB v. Family and Children’s Services of Waterloo Region, 2021 CFSRB 85

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

BKB

Applicant

-and-

Family and Children’s Services of Waterloo Region

Respondent

DECISION

Adjudicator: Eva Nichols

Date: November 30, 2021

Citation: 2021 CFSRB 85

Indexed As: BKB v Family and Children’s Services of Waterloo Region

(CYFSA s.120)

APPEARANCES

BKB, Applicant

Shaun Harvey, Paralegal

Family and Children’s Services of Waterloo Region, Respondent

Aisha Ghafoor, Counsel

Introduction

1This is an Application filed under section 120(4) 4 and 5 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).

2The Applicant alleged that the Respondent has not heard the Applicant’s concerns and has not provided reasons for decisions made by the Society relating to the issues raised in the Applications filed with the CFSRB on June 22 and 29, 2021. The Applicant’s allegations were summarized in the pre-hearing report dated August 23, 2021, as follows:

1. The basis of the Society’s current involvement, based on the court’s ruling and the CYFSA; the basis for the Society’s September 2019 letter;

2. The basis for the Society’s determination about the use of excessive physical force against the children by the Applicant’s husband;

3. The Applicant’s request for an apology from the Society;

4. The reasons for the almost 2-week investigation after attending the hospital ER on June 2, 2021;

5. The reasons for the Society reaching out to paediatrician Dr. DiGravio;

6. The reasons for the Society not advising the Applicant of the opening of the file, the investigation and the closing of the file;

7. The anticipated end of the Society’s involvement with the family.

3The matter proceeded at a hearing by videoconference on November 17, 2021.

4Prior to the hearing, by a Case Management Direction dated October 6, 2021, I directed that the evidence that the parties will lead at the hearing must focus on the dates specified in the Applications to the Board, specifically March 31, 2021 to June 14, 2021. These dates were accepted by the Board, as setting the specific timelines for the matters under consideration.

5At the hearing I heard oral submissions from the Applicant and her representative and the Society’s Child Protection Supervisor, Andrew Gaiger and the Respondent’s representative.

6For the reasons set out below, I find that the respondent did not fully meet its obligations under section 120(4)5 of the Act.

the law

7The relevant provisions of the Act are:

s.120(4) The following matters 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.

s.120(7) After reviewing the complaint, the Board may:

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

(e) dismiss the complaint

background

8The Application was filed by the mother of three minor children. The family has had a lengthy involvement with the Respondent, starting in December 2017. For a lengthy period of time, the children’s father was not living in the family home and had no contact with the children, as a result of a court decision.

9Following the father’s exoneration by the Court, he was returned to the family home. The Society had notified the Applicant in a September 2019 letter, that when the father returns to the home, the Respondent will become re-involved with the family.

10On March 31, 2021, the Applicant wrote to the Society to clarify the reason for its ongoing involvement and its future plans for the Society’s role, if any, in relation to and with the family.

11During the period between March 31, 2021, and May 21, 2021, there were numerous communications between the parties, including emails, telephone conversations, a Zoom video call and the exchange of written letters, regarding the Respondent’s concerns and the Applicant’s wishes to have the file closed.

12On May 21, 2021, the file was closed by the Society. The Respondent claimed that during the period cited above, they made every effort to explain to the Applicant the reasons for their past actions and that their actions were at all times appropriate and focused on the best interests of the children.

13On June 2, 2021, the Respondent was notified that one of the younger children of the family was admitted into hospital because he had stopped breathing. Due to the past history for the family, the police were informed of the event by the hospital. The police in turn notified the Society, as is their legislated duty to do so.

14On June 3, 2021, the Respondent was informed by the attending physician that he saw nothing suspicious in the child’s situation and the police were told that there was no need for their further involvement. Therefore, the police file remained at the intake level without any further involvement in the matter.

15During the following days, the Respondent interviewed the paediatric nurse who had looked after the child in the hospital. In spite of the fact that the nurse provided no information or concerns regarding any suspicious marks on the child or any other concerns, the Society decided to investigate further.

16They contacted the child’s paediatrician to inquire about his status and to confirm that the hospital nurse and doctor’s assessment that there were no child protection concerns noted was in fact correct. This confirmation was provided by the paediatrician.

17The Respondent did not advise the Applicant of this communication with the child’s paediatrician. Their explanation for this was that the contact to the paediatrician did not elevate their involvement from the intake to the investigation level, and therefore, they had no obligation to inform the parents

18Further, they stated that, as of June 14, 2021, the file was closed without moving to the formal investigation level. They stated that if the matter had continued to the formal investigation level, the parents would have been notified. But they alleged that there was no need to notify the parents of the intake level involvement.

ANALYSIS

19The “right to reasons” under the Act, is a right to a meaningful explanation about decisions that affect the Applicant’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013, CFSRB 8, at para. 8, the Board held that:

......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.

20I find that the Respondent did provide detailed reasons for its involvement during the period after the father returned to the family home and before the file was closed on May 21, 2021. These reasons were contained in the earlier letter that stated that the father’s return will trigger the reinvolvement of the Society and were reiterated in the various communications by letter, email, telephone and videocall.

21However, when it came to the events of June 2021, I find that the Respondent did not inform the Applicant and certainly did not provide reasons for its actions in contacting the child’s paediatrician, after they had received consistent information from the medical personnel who had been involved in the treatment of the child in the hospital that there were no child protection concerns arising from the child’s current health issues.

22I do not accept the Respondent’s explanation that the two week involvement and the contact with the paediatrician all were part of an initial intake process and did not escalate to an investigation process.

23I note that the Society’s Child Protection Supervisor offered a personal apology to the Applicant during the hearing. The Board does not usually order apologies as part of its proceedings. The apology offered was accepted by the Applicant, but it does not eliminate or mitigate the fact that the parent was not made aware of the Society’s actions during the almost two week period in June 2021, and the potential for further involvement by the Society.

order

24On or before January 15, 2022, the Respondent will provide the Applicant and the CFSRB with a written explanation of their intake and investigation processes, the difference between the two and clarify the steps taken in each process, including the stage when parents or guardians are informed of the Society’s involvement.

confidentiality order

25Pursuant 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.