AR v. Children’s Aid Society of Toronto, 2023 CFSRB 64

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AR

Applicant

-and-

Children’s Aid Society of Toronto

Respondent

DECISION

Adjudicator: Michele O’Connor

Date: July 31, 2023

Citation: 2023 CFSRB 64

Indexed As: AR v Children’s Aid Society of Toronto (CYFSA s.120)

APPEARANCES

AR, Applicant

Self-represented

Children’s Aid Society of Toronto, Respondent

Lily Ng

Counsel

Introduction

1A.R. (“the Applicant”) filed a complaint against the Children’s Aid Society of Toronto (the “Society”) on November 22, 2019, under sections 120(4)4 and (4)5 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched. 1.

2As summarized in the pre-hearing report dated June 4. 2020, the Applicant alleges the Society failed to hear his services concerns after he reported that his child had been bullied by a classmate at school. He also alleges the Society failed to conduct an investigation.

3The specific Issues for the hearing were:

1. The Society’s decision not to conduct an investigation;

2. The Society’s decision not to take any further steps to ensure the protection, safety and well-being of his child; and

3. The Society’s decision not to personally interview the Applicant or his child.

4The CFSRB must determine whether the evidence presented at the hearing on June 29, 2023, establishes, on a balance of probabilities, that the Respondent Society failed to meet its obligations to the Applicant as he alleges.

5The Applicant testified on his own behalf. Child Protection Worker, E.K. testified on behalf of the Society. Both parties filed documentary evidence.

6For the following reasons, the CFSRB finds that the Society gave the Applicant an opportunity to be heard and it provided him with satisfactory reasons for its decisions. His complaint is dismissed.

BACKGROUND

7The Applicant is a practicing lawyer. He and his wife have one child, GR, who was approximately 7 years old at the time of his complaint to the Society in 2019.

8GR was a student at a private school where, according to the Applicant’s evidence, she was being bullied by another student (“the other child”). The Applicant initially reported his concerns to GR’s teacher in 2018. He then proceeded “up the ladder” with his complaints about continued incidents of bullying by the other child, which included verbal and physical abuse against GR and others.

9The Applicant was not satisfied with the school’s response. In his view, the school failed to address the bullying and he became involved in a lengthy conflict with the school’s management. On October 1, 2019, the Applicant was asked to find another school for GR which, according to the Applicant, was based on his “purported behaviour toward (name of private school) staff.”

10On October 3, 2019, the Applicant contacted the Society. He was assigned a supervisor, CC, and advised that GR had been bullied by another student. He also expressed to CC his belief that the private school had abrogated its responsibility to address the bullying. He provided the Society with emails consisting of a complete record including dates and the specifics of various incidents and conversations held with school staff about his concerns between October 2018 through September 2019, and correspondence he had sent to the private school Board of Governors. He subsequently added further information he had heard from GR, other parents and students, and some information he obtained from the internet regarding a member of the school’s senior management team.

11The Society followed up on the information provided by the Applicant. It concluded that his concerns did not meet the threshold for investigation. The Applicant was notified of this decision on November 6, 2019. The file was closed at Intake.

12The Applicant is of the view that his concerns about protecting GR were not taken seriously by the Society and that neither he nor GR were “heard”. It is his position that the Society “was derelict in implementing its mandated duty to ensure the ‘protection, safety and well-being “of (his) child.”

13This application was scheduled to be heard in person in early 2020 but was delayed due to the Covid pandemic. A hearing held by video-conference on June 16, 2021, was subsequently declared null and void as the CFSRB member who presided over the hearing was unable to render a decision. It was re-scheduled to be heard on December 7, 2022, but had to be adjourned into 2023 after the Applicant became ill with Covid.

ANALYSIS

14The 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.

15In 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.

16This description of the purpose applies to the current legislative scheme.

17Moreover, 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.

18The Act does not mandate or permit the CFSRB to make determinations as to the clinical wisdom or validity of decisions made by the Society.

ISSUES

1) The Society’s decision not to conduct an investigation

19The Applicant testified that GR has attended the private school since junior kindergarten when she was 4 years old. In October 2018 he wrote to GR’s teacher with his concerns about another child in her grade 1 class being “harsh towards her” “and requested that GR not spend as much time with the other child. The teacher replied and the Applicant thanked her for the steps she was taking. He wrote to the teacher again January 9, 2019, regarding statements the other child had allegedly made to GR which he and his wife found disturbing and which he felt was contributing to some changes in his GR’s behaviour. These statements included “I’m going to hit you in the face” and “I’m going to pour concrete on your face”. On January 12, 2019, he wrote again describing a conversation with GR where GR reportedly said the other child hit her in the face more than once, and she had also hit other children. The teacher followed up and responded to the Applicant describing her conversation with GR in which GR allegedly told the teacher that it was a different child that hit GR. and that the incident happened at GR’s “old” school”.

20GR apparently added that the child in GR’s class did, however, push her down at recess that day and jumped on her back. The teacher followed up with both children the following day and reported back to the Applicant her perception that both children were engaged and playing a game in which GR was lying on the ground and asked the other child to jump over her which resulted in the other child’s foot or leg hitting GR in the back.

21The teacher subsequently told GR’s mother that she did not think the other child was bullying GR and that GR really wants to play that child. The Applicant wrote again to the teacher on January 27, 2019, concerning his observations of GR with the other child at a birthday party and GR’s actions toward him which disturbed him (her hand out for money and she punched him in the stomach).

22The Applicant noted that he did not want the other child in GR’s life but GR was ignoring his wishes. On February 2, 2019, the Applicant emailed the teacher again with information he heard from a former student about the other child. The Applicant indicated he had no choice but to “escalate” his complaint about the other child. The teacher responded promptly that a meeting would be arranged which would include the Head and Assistant Head of the Junior school and others.

23On May 2, 2019, there was an incident in which the GR ended up with a bleeding nose at school. GR. reportedly told her mother that the other child had come up behind her in line and grabbed her resulting in the bleeding nose. The Applicant requested a meeting with the Principal of the private school. The Principal agreed to meet and advised him that the school continued to investigate the matter. That meeting took place on or about May 7, 2019, and was followed by a letter summarizing the conversation. The Applicant replied thanking the school for “your comprehensive and very caring letter: in particular your kind comments about G”, but he expressed his dissatisfaction with the school’s response.

24On May 16, 2019, the Head of the Junior school (KW) wrote to the Applicant acknowledging his concerns and advising “We are taking this matter very seriously and will continue to monitor the [“children”] both in and out of class. We are happy to report that we have not observed any behaviours that are outside of the norm for students of this age and stage during this time. … [GR] continues to be engaged in class and participates enthusiastically”. She added that the Board Chair “would be more than happy to speak with you” and provided her contact information.

25On September 19, 2019, the Applicant wrote to the Head of the junior school (KW) advising of his continued disagreement with the way the matter had been dealt with, “particularly your rejection of reliable evidence by [the other child’s former schoolmate] of a most disturbing pattern of behaviour.” He concluded that he did not see any purpose in a further meeting “as we have discussed at great length, and I see no change in the [other child’s] problem generally and the threat posed by [the other child] to (other students). If you eventually change your assessment of the risk, I will not gloat; rather will be relieved. Hopefully this happens before serious injury occurs.”

26GR. commenced grade 2 in September of 2019. The Applicant met with GR’s new teacher and a member of the Learning Support Team on or about September 24, 2019. In an email following that meeting, the Applicant complained that the Learning Support Team member looked tired and was yawning and that he “observed (her) becoming quite bored and irritated when I mentioned the problems we had encountered with the behaviour of (the other child) and the school’s response. I conveyed my concern about lack of resolution;(the other child’s) continuing negative behaviour towards GR, and the other child’s continuing violent behaviour toward others. I can understand your view that you did not need me to rehearse the history of these problems as you had been briefed. However, as I tried to explain to you, KW and I were wholly at variance as to the existence and degree of bullying by (the other child) and the danger created to other children by it being denied/ignored.” He adds that “the meeting went wholly off the rails. … I do not feel that trust can be rekindled.”

27On September 30, 2019, the Applicant sent a lengthy email to the Chairperson of the Board of Governors of the private school and the Headmistress in which the subject line was “long standing unresolved problem – bullying – physical and emotional harm caused to [GR.] – failure of attempts to seek remedy at class teacher and junior school principal level – feedback and ideas for general benefit to (private school) community”. A meeting was scheduled to follow but, before the meeting, the Applicant got an email from the Head Mistress advising him that GR must leave the school. He objected and was eventually able to negotiate a temporary extension to the end of the term so he could find an appropriate alternative. GR began at her new school in January 2020 and continues to attend there.

28The Applicant also filed complaints against various members of the private school with the Ontario College of Teachers and hearings were held.

29After the Applicant had described in considerable detail his history with the private school at the hearing, the CFSRB asked him to focus his evidence on his complaint against the Society.

30The Applicant testified that he contacted the Society on October 3, 2019. His associate made the first call and spoke with the Director of Intake who assigned the matter to Intake Supervisor, CC. The Applicant and CC spoke for approximately 45 minutes during which time the Applicant described the history of bullying against GR and his efforts to have the private school address the issue. He also advised that GR had been “expelled” due to his behaviour towards school staff. He followed the telephone call with emails and said that he sent CC all documents generated with (the private school).

31The Applicant testified that he heard nothing for about a month and then CC told him “There’s nothing to investigate here”. He complains that “He never met me or my wife or (GR.).” And it was the Applicant’s understanding that the Society had no intention of meeting with (the private school).

32In response to questions from the CFSRB the Applicant said he recalled no further contact with the Society, and that he did not recall getting an explanation. He recalled speaking with CC in November, 2019. CC explained to him that what he had described (verbally and in his correspondence and attachments) did not fall within the categories that the Society thought should be taken further. CC explained that the Society had discussed the matter internally and told him his concerns had not met “the threshold”. CC explained that the Applicant’s concerns fell below the level of intervention by a Society. The Applicant said he had described actions “by a violent [child] who was crazy” and he did not understand the Society’s decision. CC went on to explain to him that there are various categories the Society must consider, and his matter did not fall within the Society’s mandate.

33In response to a question by the CFSRB as to what the Applicant wanted from the Society at the time, he testified “I wanted to be properly interviewed and for them to speak with my wife and (GR.) because the worker had only correspondence and documents. I would have liked a proper explanation for why this level of violence was permitted.” He went on that he felt he was attempting to report a serious problem and the bigger problem was that the Head Mistress (of the private school) did not understand what bullying was. The Society “needed to look into it to see if there was a regime in place. I wanted an interview. I wanted them to properly investigate. I wanted them to explain and I sought advice. It would have meant going to the school, speaking to KW (head of Junior School) and others, speaking to the other child’s parents, at least go to the school”. The Applicant felt it had been “skimmed through” and it indicated to him that the Society had not appreciated the seriousness of his report.

34During cross-examination by the Society counsel, the Applicant acknowledged that he had spoken with CC on October 3, October 8, and November 6, 2019. He reviewed the Contact Logs put into evidence of those conversations and independently recalled the content as correct. He also recalled that CC listened, he was not rushed, and he was able to speak freely. The Applicant concluded his cross-examination stating “I have no reason to believe (CC) did not listen to me.”

35There were further email exchanges between the Applicant and the Society between October 9 and November 6, 2019, at which point the Applicant was advised that, due to privacy considerations, the Society could not disclose information regarding or obtained from others.

36On November 3, 2019, Applicant’s then counsel sent a letter on his behalf to CC with additional information as well as a transcript of a conversation between the Applicant and GR about the other child and that child’s brother. CC arranged a telephone call with the Applicant and his counsel. According to the contact log filed, CC advised them that this new information did “not qualify as a child protection allegation since there is no indication or allegation of abuse”. The Applicant and his counsel expressed their view that GR should be interviewed.

37CC explained that “the Society investigates cases of child abuse and neglect. Incidents involving children of similar ages where there is no sign of abuse or where children are making comments to another children (sic) are typically seen as matters relating to supervision or parenting capacity issues. In these cases such comments do not qualify as a child protection allegation since there is no indication or allegation of abuse. (The Applicant and his counsel) indicated that they understand.”

38There was apparently a suggestion by counsel that the Society was reluctant to get involved because it was a private school. CC noted in the contact log that “If it is a matter that occurred during school hours on the school, the school is responsible for intervening and taking steps according to the anti-bullying laws in Ontario.” The Applicant then raised concerns about the Head Mistress of the school based on information he had obtained during a google search of her former position in another country and he noted some “bad reviews on the internet”.

39CC confirmed he read the materials provided by the Applicant and indicated again that these do not qualify as a child protection allegation. CC concluded the conversation with the Applicant and his counsel as follows: “After reviewing the information received, it was determined that matters described and shared do not qualify as child protection concerns. I advised that we encourage you to discuss your future concerns with the school. (The Applicant) is asking if we can share if (the other child) and (the private school) have been involved in any previous CAS matters. I advised that if the info (sic) pertains to other individuals unfortunately we would not be able to share that information with you. (The Applicant) indicated that is very unfortunate to hear.”

40Also filed in evidence by the Society was a note prepared by CC regarding his consultation with his Director dated October 8, 2019. This note details that the purpose of this consultation was to review the referral information, the eligibility spectrum and case disposition and to confirm coding and disposition. “Referral source provided the Society with a 60 + page document of communication between himself and the school. From the letter received from the referral source it can be concluded the school:

• Described the matter as within expected and accepted range of developmental norms, not bully incident,

• School says treats these seriously, put a plan in place to separate and supervise the two students;

At this point, the case coding is below the intervention line. A CP investigation is not required since this refers to a peer to peer interaction, no named caregiver responsible for any abuse or neglect, no reason to believe a community caregiver contributed to the situation where a child was hit by another child, no allegation that a community caregiver was responsible or did not intervene when this occurred.

Direction is to contact the school management by phone to determine if procedures to address incidents of student aggression are in place (instances of peer violence and bully (sic) are addressed under the education act) determine how the school addressed the incident, and obtain information related to (the Applicant’s) allegation pertaining to the child who allegedly (bullied) (GR - does the school have concerns regarding that child. Further consultation to occur once the school has been contacted.”

41CC is no longer an employee of the Society. He was not present to testify or be cross-examined by the Applicant. His contact logs and notes to the file were admitted into evidence as business records and I accept the contents as true.

42Child Protection Worker EK testified on behalf of the Society. As a telephone Intake Worker since 2008, she was delegated by her supervisor, CC, to complete the follow up with the private school.

43EK testified that she follows specific criteria at the Intake stage and that there are protocols to follow to determine whether or not the Society will conduct an investigation. Generally, the worker looks at background information, the allegations and other information in the initial report, supports available for a family, whether there is any history with the family or a caregiver. Then the worker looks to the Eligibility Spectrum to see if the information collected codes within the threshold for assessment. There is an “intervention line”. Anything coding below that line does not warrant further assessment or follow-up. She explained that the Eligibility Spectrum governs all Societies.

44EK continued her evidence that the main focus at Intake is to investigate caregivers. If the issue is between 2 similarly aged children, the Society has no role. It does not assess children unless one of them is in a caregiving role for another child.

45With respect to the Applicant, EK testified that she was asked by her supervisor to follow up with the private school. Her task was to ensure the school was aware of the report to the Society; determine what it knew about the allegations and what it had done to address the issue; and determine if it had any concerns about the other child. She explained that she speaks with school staff “all the time”, they are her biggest referral source.

46On October 17, 2019, EK had a telephone call with KW, Head of the Junior School, which lasted for 9 minutes. During the call, she established that the school was aware of the Applicant’s concerns, it had internally addressed those concerns, and it felt that the incidents of concern to the Applicant fell within developmental norms. The witness had little independent recollection of the call in 2019, but reviewed her Contact Log from that event which was filed in evidence.

47Asked why there was no person-to-person follow up, EK testified that when the issue involves two children or when it is in a community caregiver situation without an identified perpetrator, the Society does not proceed to an investigation. In this matter there was an incident or incidents between two children and there was no identified caregiver of concern. Consequently, the matter fell below the intervention line and did not meet the threshold for an in-person interview. That is the reason there was no in-person interview with the Applicant, his wife or GR. The case was closed at Intake.

48The Applicant’s various attempts to impeach EK as a witness were unsuccessful. He questioned her qualifications, her expertise, her understanding of statutory definitions e.g. “caregiver” and “harm by omission””.

49During cross-examination EK reviewed the unredacted contact log of her involvement with the private school to refresh her memory. She recalled briefing the information in the file prior to calling the school. She testified that she asked questions of KW about the school’s process for bullying, what they had learned and whether they had any concerns about the other child. KW reportedly told her that, in general, the school’s process when dealing with aggressive or bullying behaviour between students is to apply a progressive discipline model. It looks at the age and stage of the students involved and tries to determine if it falls within developmental norms. In this case it did. The Applicant suggested to the witness that the phrase “age and stage appropriate” came from KW. The witness confirmed that when speaking about children, “we look at a child’s age and developmental stage” as a matter of course and said that she had certainly used those words in her career.

50The Applicant attempted to establish that KW, the Head of the Junior School, was, in fact, in a caregiving role and that GR was at risk from “a dangerous girl” as a consequence of KW’s failure to protect her as set out in the definition of “harm by omission” in the Child Youth and Family Services Act (CYFSA). EK explained that, in looking at what the Applicant had presented to the Society at the time of his complaint, KW was not an identified caregiver of either child during the incident(s) in question. She, as well as several other private school staff, were referenced in the various email strings and documents filed with the Society by the Applicant.

51The Applicant has not established through direct or indirect evidence that the Society failed to hear him or provide him with reasons for its decision not to conduct a child protection investigation following his report to the Society in October 2019. I find that the Society provided him with clear reasons for its decision during the November 6, 2019, telephone call between him, his then counsel, and CC. He heard the same and expanded reasons for the Society’s decisions from the society witness and in the documentary evidence filed. This aspect of his complaint is dismissed.

Issue 2 The Society’s decision not to take any further steps to ensure the protection, safety and well-being of GR; and

Issue 3 The Society’s decision not to personally interview the Applicant or GR.

52I address these two issues together as they relate to the same decision by the Society not to pursue a child protection investigation.

53The Board dismisses these two complaints for the same reasons as given above in relation to Issue 1. The Applicant’s reported concerns were followed up by the Society at Intake. A supervisor was assigned to work with the Applicant. They had at least three telephone conversations. The Applicant acknowledged in the course of the hearing that he was heard. The Society reviewed all of the materials submitted by him, followed the appropriate steps, consulted internally, followed up with the school, applied the Eligibility Spectrum, and concluded that the Applicant’s concerns fell below the line for intervention. It advised the Applicant of its reasons which were that the complaint fell below the threshold for a child protection investigation and why. This meant that no in-person interviews or further steps were required based on the information provided by the Applicant, his counsel, or the school at the time of his complaint.

CONCLUSION

54The decision as to whether to conduct an investigation and/or take any further steps falls solely within the Society’s jurisdiction and is based on an assessment using standardized assessment tools. The CFSRB does not sit in review of a Society’s decision.

55I find that the Society met its obligation to hear the Applicant’s concerns when he raised them. It provided reasons for its actions at the time, prior to closing its file and again during this proceeding. After reviewing all of the materials filed with the Society by the Applicant and several telephone conversations, the Society informed him that his allegations did not meet the criteria for a child protection investigation under the Child Welfare Eligibility Spectrum (2019) and the Child Protection Standards (2016). Copies of both of these documents were provided by the Society to the Applicant. They were included in the Joint Brief of Documents submitted to the CFSRB in this hearing. The Applicant asked no specific questions of the Society witness regarding the Spectrum or the Standards. CC provided the Applicant with sufficiently detailed reasons to explain the Society’s decision not to conduct an investigation, take any further steps, or do any in-person interviews. I also note that the Society is limited by privacy considerations in what information it can provide to a complainant regarding third parties, in this case, the private school and the other child. It advised the Applicant of this restriction when he requested third party information.

56While the Applicant disagrees with the Society’s conclusion, I find that he has been provided with sufficient reasons to explain its decisions on all 3 aspects of his complaint.

CONFIDENTIAL

57Pursuant 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.