SB & SM v Child and Family Services of Grand Erie, 2022 CFSRB 19

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SB & SM Applicants

-and-

Child and Family Services of Grand Erie Respondent

DECISION

Adjudicator: Michele O’Connor

Date: August 09, 2022

Citation: 2022 CFSRB 19

Indexed As: SB & SM v Child and Family Services of Grand Erie (CYFSA s.120)

APPEARANCES

SB & SM, Applicants

Birkin Culp, Counsel

Child & Family Services of Grand Erie, Respondent

Elizabeth Capitano, Counsel

Introduction

1S.B. and S.M. (“the Applicants”) filed a complaint against the Child and Family Services of Grand Erie (”the Society”) on March 8, 2022 under sections 120(4)4 and (4)5 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched. 1.

2This Application consists of the following concerns which were identified jointly by the parties during the pre-hearing:

1. The Applicants allege that the Society failed to give them an opportunity to be heard regarding its decision to place their names on the Child Abuse Registry; and

2. The Applicants allege they were not given written reasons for the Society’s decision to place their names on the Child Abuse Registry.

3The CFSRB must decide whether the Society met its obligations regarding the Applicants’ complaints, i.e. were they given an opportunity to be heard and were they given reasons for decisions that affected their interests.

4The hearing was held on June 10, 2022. The Applicants both testified. The Society called evidence from S.I. (“the Worker”). Both parties filed documentary evidence.

5For the following reasons, the CFSRB finds that the Society did not give the Applicants an opportunity to be heard, nor did it provide them with satisfactory reasons for its decision.

BACKGROUND

6The Society has been involved with the Applicants since their son, K.M. (“the Child”) was admitted to hospital on October 15, 2021, with significant injuries. A police investigation has concluded. No charges were laid. Child Protection proceedings are ongoing. The child remains in the temporary care of the Society and currently resides with maternal grandparents in a kin placement. Both parents have supervised access with him.

7According to the Society records, on January 14, 2022, the family was notified that the allegations had been “verified” and the investigation would be reviewed by the Society Child Abuse Registry Team (“CART”) regarding notification to the provincial Child Abuse Registry (“CAR”/”the Registry”). The Applicant S.B. was present at this meeting. SM was working and could not attend. He was notified separately on January 21, 2022, by telephone.

8The CART meeting took place on February 25, 2022. It determined that both parents’ names would be placed on the Registry. The Applicant SB was notified of the decision in a meeting with the Worker on March 2, 2022. SM was notified separately by voicemail the same date.

9SB asked in advance to attend the CART meeting. She was told the meeting was “closed” and she would not be permitted to attend.

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.

13Moreover, 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.

14The 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.

ISSUES

# 1 The Applicants allege that the Society failed to give them an opportunity to be heard regarding its decision to place their names on the Child Abuse Registry

15The Applicant testified that she was told on January 14, 2022, during a transfer meeting with the Intake Worker and her ongoing Family Services Worker (SI) that abuse of her son had been “verified” and the matter had been referred to the Society Child Abuse Review Team (“CART”). There was no prior discussion of this referral and she was surprised. She was not given any written or other information regarding the CART process.

16On January 19, 2022, SB asked to attend the CART meeting. She wanted her voice to be heard and an opportunity to present herself to the members of the team.

17On January 26, 2022, SB spoke with her worker about the possibility of submitting personal work evaluations as she felt it was important for the team to understand and “see” her. SI said she would inquire and let the Applicant know. SI subsequently advised SB that she could not attend the meeting, but that her “voice would be heard”.

18On February 24, 2022, SB left a voicemail for the family service worker asking that she advise CART that SB had been cooperative and had met with her worker as requested, that she was attending counselling and programming, and that she would “do anything” for her son.

19SB testified that she has no knowledge of what, if anything, SI told CART on her behalf. She was not given any opportunity to directly address the CART panel. She was given no indication of the prescribed standards for CART or who the members of the team would be.

20After the CART meeting on February 25, 2022, the worker met with the Applicant SB to advise that the team had decided that both parents’ names would be placed on the Registry. SB testified “We still have no idea who can access the Registry, what the contents of the Registry will be and how that is determined, and how it will affect my employment as a teacher.”

21On March 8, 2022, the Applicants each received a form letter from the Society containing the following excerpt:” It is the responsibility of (the Society) to review the investigation to determine if the name of the alleged abuser is to be placed on the Child Abuse Register. (The Society) has (sic) verified the concerns and will be registering you. In due course, the Registry will notify you of the registration and your rights in these circumstances.”

22Both parents subsequently (on or about March 22, 2022) received a form letter from the Ministry of Children, Community and Social Services (“MCSS”) advising that (the Society) is “satisfied that reportable abuse occurred. The Society is required by law, Child, Youth and Family Services Act, S.O. 2017 Section 133(3) (“CYFSA”) to send a report on this matter to the Child Abuse Register, held in Toronto by the Ministry of Children, Community and Social Services.” The letter, filed in evidence, goes on to explain that the Register is used as a tool in the overall effort to protect children and in the prevention of child abuse, and advises as follows: “The law states that you or your representative may examine the Register. You may request that your name be removed or that the Register be otherwise amended. As a result of this request, the Director may decide to remove your name from the Register. Before the Director can refuse your request, you are entitled to a hearing by the Director or his/her designate.”. The letter included an excerpt from the CYFSA referencing sections 133 and 134 respectively, together with contact information to seek an expunction hearing.

23The Applicant SB was concerned that registration on CAR would be reported to her employer. The worker was unclear as to whether or not the employer would be notified. Similarly, the Applicants were concerned that a Vulnerable Sectors Check which is required in any volunteer or paid work with children would trigger information from the Registry which may cause her to lose her employment.

24The worker testified that she called the Ontario College of Teachers and left a message which was returned. She could not recall with whom she spoke and did not record it in a Contact log but said that no identifying information was given. She was subsequently advised by Society legal counsel not to notify the Ontario College of Teachers until after the child protection proceedings concluded.

25The Applicant SB acknowledges discussions with her worker about “Why” abuse was verified – that her son had serious injuries while solely in the parents’ care, and no explanation was provided by either of them to explain the injuries. But she remains unconvinced that the worker conveyed her wishes to CART because she did not receive a Contact Log or other document clarifying what was discussed in the meeting, who was present, what were the qualifications of CART members, or what SI said to the team on her behalf.

26The worker testified that she conveyed the Applicant SB’s statements to CART. She acknowledged that she did not know the processes involved and had not consulted any policies related to CART or reporting to CAR. She does not know with certainty who can view the Register, whether the information will at some future point be communicated to the Ontario College of Teachers, who else may have access to the Register, what will be the effect of registration or how to get off of it.

27Applicant SM testified that he was not present at any of the meetings between the worker and SB, and was not aware of the CART meeting on February 25, 2022, until after the meeting when he received a telephone message advising of the outcome, i.e. that both parents names would be placed on CAR.

28Like SB, SM had no knowledge of the CART process. “We were just told that we were on the Child Abuse Register”. There was no documentary information, no coordination or cooperation. He acknowledged that he had not called the Worker, did not attend any of the meetings, and did not request that one be scheduled for him. He said he would like to know what documents or information was submitted to CART that led to the decision to register the Applicants on CAR; what specific factors did the team consider in making its decision; how was it proved; and who can access the Register.

29Both parents acknowledged an otherwise good working relationship with their worker and that communication on issues pertaining to their son had been open and transparent.

30The worker testified that the severity of the injuries and the absence of an explanation of what had happened led to the verification of abuse. “If we verify serious injuries to a child, we are obligated to report to the CAR.” She said the Intake worker explained the meaning of “verification” at the transfer meeting in January, that it involved risk assessment, and that the absence of an explanation for the injuries from the parents was a roadblock to safety planning for the child.

31With respect to the Applicant not being able to attend the CART meeting, the Worker said she consulted with her Manager and was told that parents are not part of the process. “Clients do not attend these meetings.” When asked if this rule was written anywhere, the Worker’s response was that she believes so but does not know. She does not know CART policies or procedures, did not consult it and does not know what it says. Further she did not know the qualifications of those present at the meeting. The Worker also acknowledged that she made no request of Applicant SM for his input to the CART meeting.

32Clearly, the test in PO v. Family and Children’s Services Niagara 2012 was not met in this situation. Neither parent was given the opportunity to have any degree of influence on the process. For the reasons set out above, I find that the Society failed to give the parents an opportunity to be heard regarding its decision to place their names on the Child Abuse Registry

#2 The Applicants allege they were not given written reasons for the Society’s decision to place their names on the Child Abuse Registry

33Both Applicants testified that they did not receive any documentation regarding the Society’s decision to place their names on the Registry apart from the form letters mentioned above at paragraph 21 and 22 of this decision. This evidence was confirmed by the Worker.

34Counsel for the Society offered that the composition of the CART was dictated by statute, ss.129(2) of the CYFSA, which specifically requires “persons who are professionally qualified … and at least one legally qualified medical practitioner.”. The Worker could not recall if a legally qualified medical practitioner was present at the meeting on February 25, 2022.

35The Applicants requested disclosure of the Society file but did not receive a Contact log from the CART meeting. They remain without answers to their questions regarding this process. Who was present at the meeting and what were their qualifications? What information was provided to the members of the team? What factors did the team rely on to make the decision to place the Applicants’ names on the Registry? Why were they not permitted to attend the meeting? If there are rules regarding who can attend the CART meeting, where are they and why were they not provided to the Applicants?

36The Applicants were not given sufficient explanation of the Society’s process and none of the questions they raised were answered satisfactorily. While the Applicants may still have been unsatisfied with the CART decision to place their names on the Registry, they deserved a more fulsome explanation of how it came to be and the opportunity to participate on the decision-making. 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. The test in JG v Windsor Essex Children’s Aid Society was not met.

37For these reasons, I find that the Society failed to provide the Applicants with satisfactory reasons for its decision to place the parents’ names on the Child Abuse Register.

CONCLUSION

38Regarding Issue 1, based on the oral evidence and documents filed by the parties, I conclude that the Applicants were not given the opportunity to be heard by the Society. They were not permitted to attend or present information at the CART meeting where decisions were made that may have profound implications for them personally and professionally. The Society’s refusal, in the absence of any evidence to the contrary, appears to have been arbitrary and is not supported by policy, practice guidelines, or the law.

39Regarding Issue 2, I find that the Society failed to provide the Applicants with satisfactory reasons for its decision to place the parents’ names on the Child Abuse Register. They were told only that the Society was “obligated” to do so, but no evidence was provided by the Society to support that assertion.

ORDER

40My remedial powers in this matter are restricted to those options in section 120(7) of the CYFSA as specifically set out at paragraph 10 above.

41Within 30 days, the Society shall provide a letter to the Applicants containing the following:

a. Copies of the Society’s internal policies and procedures governing the structure and membership of the CART and what rules, if any, govern who can participate in the CART; what information is provided to the CART members in advance of or at the meeting; and what factors does CART consider in making its determination to place someone’s name on the Child Abuse Register;

b. A clear and understandable explanation for the Society’s decision to refuse the Applicant SB an opportunity to attend the CART meeting and/or to make presentations to the team on her own behalf;

c. A detailed explanation for the CART decision in this specific case including but not limited to what factors the team considered and what its reasons for concluding that the Applicants names would be placed on the Registry were;

d. The details with respect to information included in the notification to the Registry; Information about who has access to the information on the Registry; Information about who the Society is required to notify when a person’s name has been placed on the Registry, such as whether employers or professional Colleges will be notified ; and Information about whether there is any discretion exercised by the CART with respect to who is to be notified. If discretion is exercised by the CART, the Society shall provide detailed information about the factors considered in exercising discretion.

e. Details of a plan for ensuring that Society workers have a better appreciation and understanding of the implications of a person’s name being placed on the Child Abuse Registry so they are equipped to answer client’s questions such as those posed by the Applicants in this case.

Confidentiality Order

65Pursuant 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.