CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
NMG
Applicant
-and-
Children’s Aid Society of Toronto
Respondent
DECISION
Adjudicator: Silvia Novak
Indexed As: NMG v Children’s Aid Society of Toronto (CYFSA s.120)
WRITTEN SUBMISSIONS
NMG, Applicant
Self-represented
Children’s Aid Society of Toronto, Respondent
Chithika Withanage, Counsel
Introduction
1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).
2The Complaint was found eligible pursuant to sections 120(4)4 and 120(4)5 of the Act. It is alleged the Applicant was not given the opportunity to be heard and represented when decisions affecting his interests were made and/or to be heard when he has concerns about the services they are receiving, and that they failed to provide the Applicant with reasons for a decision that affected his interests.
3For the following reasons, I find the Society did not give the Applicant an opportunity to be heard and did not provide him with adequate reasons for its decision to not investigate until it responded to this Application.
the law
4Section 120(4) of the Act provides:
The following matters may be reviewed by the Board under this section: …
Allegations that the society has failed to comply with subsection 15(2);
Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
Section 15(2) of the Act 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:
(d) order the society to provide written reasons for a decision to a complainant; or
(e) dismiss the complaint.
background
5The Applicant is the father of an almost 5 year old child. The child’s parents are separated and share care and decision-making responsibilities. On June 16th, 2022 the Applicant made a report to the Respondent regarding statements the child made to him about the child and the mother touching and/or licking each other’s tongues. He feels the mother may be sexually abusing the child. The Applicant indicated he covertly recorded the child’s statements and offered to provide the recording to the Respondent. In this Application he wrote, “to this day (September 12th) CAST has still not acknowledged this offer, or shown any interest in listening to the recording, or reading the transcription.” He provided his transcription of the recording in his Application to the Board. He indicated there was no contact from the Respondent after June 17th, 2022 until July 7th, 2022 when he called to ask for an update regarding the investigation and was then told they decided not to investigate.
6The Applicant feels the Respondent did not provide him with an opportunity to be heard regarding his concern about the tongue touching, that they did not provide him with an opportunity to be heard when they decided not to interview him and/or his son, and that they did not provide him with reasons for their decision to not investigate.
7The Respondent concedes that it did not comply with s.120(4)4 and 120(4)5 with regard to this specific incident. In their Response, they also offer reasons for their decisions and a willingness to provide further reasons if the CFSRB finds the reasons given are inadequate.
8Based on the Application and the Response the following is a timeline of events:
a. On June 16th, 2022 The Applicant called to report his concerns and the existence of the recording. Based on the Respondent’s outline of that June 16th call the Applicant shared details about what was said by the child, how the topic arose, that he felt the behaviour was ongoing, that the mother did not understand boundaries and that he has other concerns about her inappropriate sexual behaviour which he felt the Society previously failed to adequately address. The intake worker also noted who else the father had told, including personal contacts who were child welfare workers, as well as the police, his lawyer and a parenting assessor. The Applicant also discussed the current access schedule, the child’s difficulty with it and his worry that in the past the child had been coerced into not disclosing information to him. The worker noted the Applicant felt there should be an urgent intervention, that the child should not be sent to his mother and the worker should listen to the recording before speaking with the child. The intake worker subsequently reviewed the Society’s history of involvement with the family.
b. After his initial call to report his concerns, the Applicant then sent an email to the Manager of Client Services outlining much of what is outlined in the paragraph above. In their Response to this Application the Respondent indicated the Manager replied to his email on June 17th, 2022, however they did not include a copy of that response in their materials and the Applicant makes no mention of a response from the Manager.
c. On June 17th, 2022 the Intake worker consulted with her supervisor and based on their review of the information they determined no investigation would be initiated as “the concerns did not alone constitute sexual abuse as there was not enough information around context of the situation, nor any indication on the impact on the child.” The intake worker was directed to advise the father of the decision and that she would follow up with the mother. She was also encouraged to provide the father with other possible ways of addressing his concerns.
d. On June 17th, 2022 the Intake worker called the Applicant and from his perspective, asked minimal questions including whether he has had an update from his lawyer, before advising they did not have enough information. The Applicant assumed she meant they would investigate to obtain more information. The Respondent’s recollection of this call indicated that during this call they discussed not only whether he heard back from his lawyer, but also various collateral contacts and that the decision was made not to investigate as there was not enough context to suggest any form of sexual abuse. She then provided him with suggestions on how to address the issue, including speaking to his son, the mother and/or through legal means. According to the Respondent, the Applicant became upset with the Intake worker and indicated he would be ending the call and did not want to hear back until the Society could tell him what steps they would take to address his concerns. He hung up and the worker was not able to advise him that she would be following up with the mother.
e. On June 18th, 2022 the Society received a Police Report which summarized their involvement as related to the father’s report that the mother sexually assaulted the child. The Respondent attached the report to their Response. In this report, the Police note they heard 15 seconds of the audio recording and describe the first seconds of the audio as “inaudible”. Their transcription of the audio differs from that which the Applicant provided in this Application.
f. On June 19th, 2022 the Society received a report from the Pediatric office staff regarding concerns the father reported to them and determined there was no information that would warrant a child protection investigation at that time.
g. On June 20th, 2022 the Intake Supervisor reviewed the calls from the Police and the Pediatric office staff.
h. On June 21st, 2022 the Intake Supervisor again assessed the information provided since the initial report by the Applicant. He noted the Society had previously not verified the Applicant’s concerns about the mother sexually abusing the child, that the current allegation did not warrant an investigation and that the child could be negatively affected if the Society continued to receive ongoing allegations from the father and be subject to repetitive interviewing.
i. On June 21st & 24th, 2022 the Intake worker unsuccessfully attempted to reach the mother.
j. According to the records provided by the Respondent, on June 21st, the Applicant sent the Manager of Client Services an email wherein he requested an update on the Respondent’s response to his June 16th, 2022 report. In her June 22nd, 2022 email she advises him of the decision and rationale to not investigate the concerns he reported. She writes, “in reviewing and analyzing all available information including referral information, CAS records, analyzing and weighing the known protective factors, strengths, safety threats and risk, consideration of the incident within the context of broader information known about your family, child and family’s functioning, a review of the Ontario Child Welfare Eligibility Spectrum 2019 and 2015 Ontario Child Protection Standards; a determination was made that there will not be a formal investigation and therefore your child…will not be interviewed. As we are not proceeding with a child protection investigation, we will not require the recording nor the transcription of the recording”. The Manager then goes on to address other issues the Applicant had raised.
k. On June 24th, 2022 after consulting with her manager the Intake worker wrote a letter to the mother requesting contact. The mother contacted the worker on July 4th, 2022 and they discussed the report, the fact that they closed the case, but still wanted to follow up with her. The mother was invited to provide her perspective on why the report may have arisen, her son and co-parenting.
l. On July 4th, 2022 the Respondent received a call from an Occupational Therapist who reported concerns that Applicant relayed to her regarding the mother.
m. On July 6th, 2022 the Applicant contacted the Respondent Society and requested an update. He expressed his concerns about the child being sexually abused, the intake worker’s lack of appropriate questions and the Respondent Society’s lack of response. He also relayed other concerns about the mother. The Applicant was advised the Manager of Client Services would reach out to him.
n. On July 7th 2022 the Applicant and the Manager of Client Services participated in a telephone call. Both agree the Applicant was advised during this call that no investigation would be commenced and the child would not be interviewed. Both outlined that the Manager read the Intake Supervisor’s justification for not investigating (the accuracy of which the Applicant disagrees with). According to the Respondent, during this call the Manager also indicated she sent him an email on June 22nd which outlined the decision made by the Intake team and the rationale for the decision to not proceed with an investigation. The Applicant indicated during this July 7th, 2022 call the Manager also relayed that the audio recording was inaudible. The Applicant outlines this statement was then contradicted by that same Manager in an email she sent later that day (although neither party provided an email from that date) stating that because they would not be proceeding with an investigation, they would not require the recording or the related transcription.
9The Respondent advised the initial decision to not investigate was based on the review of the initial call, review of the eligibility spectrum and history. They did not require the recording to make their determination for eligibility for service. The Intake worker did advise him of the decision during her call to him, however, they concede that when he hung up on her, she should have made further efforts to contact him and convey the entirety of the Society’s position including that they planned to.
10The Respondent also acknowledges they should have made more efforts to create more opportunities for him to have a voice to determine what supports and resources might be of value to him. They extend an invitation to him to meet with them to discuss his experience and ways they could improve.
analysis
11The Applicant and Respondent’s recollection of communication differs somewhat, nevertheless, the Respondent concedes they should have made more efforts to engage the Applicant and provide him with opportunities to be heard. They also concede they should have explained more fully their rationale as to why they did not initiate a formal investigation and/or interview his son and their plan and rationale for contacting the mother.
12Through their Response to the Application, the Respondent has now heard the Respondent’s concerns, invited him to provide further feedback by meeting with them and provided the rationale for their decision to not initiate a formal investigation regarding his June 16th, 2022 report. To summarize, the decision to not investigate was made on June 17th, 2022 by the Intake worker and Intake supervisor after reviewing the information before them, including the eligibility spectrum, the initial report as well as the family’s history of involvement, and that decision was based on their view that the reported information did not constitute sexual abuse as there was a lack of context and no known impact on the child. The concerns and decision to not investigate were again reviewed on June 21st, 2022 by the Intake Supervisor after the Society received further reports from community collaterals. The Intake Supervisor again determined that the allegation was similar to a previous unverified allegation, did not meet the threshold for investigation and that there was a risk to the child if he was subject to repetitive interviewing.
13Until submitting their Response to this Application, it also does not appear the Respondent communicated to the Applicant that they received information about the audio recording through a Police Report. This clarifies the inconsistency raised by the Applicant between the Manager’s verbal and email communication regarding it being both inaudible and not in their possession. Given their decision they did not feel they needed the recording, and they later found out the Police Report described the first few seconds of it as being inaudible. The Response also clarifies that the mother was not contacted until after the decision to not initiate a formal investigation was made and why that contact 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. The CFSRB can only determine whether the Respondent adequately provided the reasons for its decisions.
15The Applicant may disagree with the Respondent’s actions or lack thereof, including their decision to not initiate a formal investigation, however, at this time, the Respondent has heard the Applicant’s concerns, extended an invitation for him to provide further feedback and provided written reasons for not initiating a formal investigation regarding his June 16th, 2022 report.
order
16There is no further relief I can order given the limited remedial authority available under s. 120(7) and so this Application is dismissed.
confidentiality order
17Pursuant 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.
Dated at Toronto, September 29, 2022.
Silvia Novak
Silvia Novak
Member