AK v. Bruce Grey Child and Family Services, 2024 CFSRB 129

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AK Applicant

-and-

Bruce Grey Child and Family Services Respondent

DECISION

Adjudicator: Donna A. Wowk Date: November 13, 2024 Citation: 2024 CFSRB 129 Indexed As: AK v Bruce Grey Child and Family Services (CYFSA s.120)

APPEARANCES

AK, Applicant Self-represented

Bruce Grey Child and Family Services, Respondent Ali Mirza, Counsel

INTRODUCTION

1This is an Application to the Child, Youth and Family Services Board (“CFSRB”) filed under section 120 of the Child, Youth and Family Services Act 2017, SO 2017, c.14, Sched.1 (“the Act”). A hearing was held by videoconference on October 8, 2024.

2The CFSRB found the Application eligible to proceed under sections 120(4)4 and 120(4)5 of the Act.

3The Applicant is the mother of G.K.N. (“the Child”). The Child is in the sole custody of her father further to a court order made in December 2021.

ISSUES

4Did the Respondent hear the Applicant’s concerns and provide her with reasons for decisions in relation to the following allegations by the Applicant:

a. From the time an order awarding custody of her daughter G.K.N. was made in a Family Court proceeding in December 2021; the Applicant asserts that she made numerous complaints to the Respondent regarding serious and unusual physical injuries and illnesses her daughter has suffered while in the custody of her father (including a broken arm, burns form falling into a fire, two black eyes and trips to the hospital for a lung infection). The Applicant alleges that she has observed these injuries during access visits and has been told about them by her daughter during telephone visits;

b. She was not provided with an opportunity to fully express concern about the injuries and illnesses detailed above; and,

c. The Respondent failed to provide her with reasons for either failing to open investigations into her complaints or, in other instances, has failed to provide her with reasons for its investigation files being closed.

RESULTS

5Having heard the testimony and reviewed the documents presented at the hearing, I find the following:

• The Applicant was not a “parent” within the meaning of s.2(2) of the Act after sole custody of the Child was granted to the father in December 2021. The opportunity to be heard and represented referenced in subsection 120(4)4 of the Act applies to children and young persons and their parents. As such, the Applicant did not have standing to bring an application under subsection 120(4)4.
• Notwithstanding my finding that the Applicant was not a “parent” within the meaning of s.2(2) of the Act, I find that the Respondent provided the Applicant with opportunities to express concerns and that it heard her concerns about the Child.
• I also find that the Respondent provided the Applicant with reasons for its decisions including with respect to decisions that affected her interests.

PROCEDURAL ISSUES

Natalie van Eck letter dated September 17, 2024

6The Applicant sought to introduce into evidence a letter written by Natalie van Eck, Mental Health Court Support Worker, Canadian Mental Health Association, dated September 17, 2024 (“the van Eck Letter”). The Respondent objected to the admission of the van Eck letter into evidence on the basis that its contents were hearsay and that it was neither relevant nor probative to the issues to be determined.

7A Pre-Hearing was held on August 29, 2024 at which time the parties were directed to disclose to each other all arguably relevant material by September 16, 2024, and to file with the CFSRB the material they intended to rely upon at the hearing by September 27, 2024. Moreover, Rule 6.1 of the Child and Family Services Review Board Rules of Procedure (“CFSRB Rules of Procedure”) provides that unless otherwise decided at a pre-hearing, any evidence a party wishes to submit during a hearing must be disclosed to the parties and the CFSRB no later than 10 days prior to the hearing. The Applicant did not provide the van Eck letter to the Respondent or the CFSRB until October 4, 2024.

8Ms. van Eck was not in attendance at the October 8, 2024 hearing and was therefore not available for cross-examination by the Respondent with respect to the van Eck letter.

9Having regard to the late delivery of the van Eck Letter, the CFSRB Rules of Procedure, and the author being unavailable for cross-examination, I declined to admit the van Eck letter into evidence.

THE LAW

10Subsection 120(4)4 and 5 of the Act state:

(4) 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.

11Subsection 15(2) of the Act states:

(2) 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.

12Subsection 2(2) of the Act states:

(2) Unless this Act provides otherwise, a reference in this Act to a parent of a child is deemed to be a reference to,

(a) The person who has lawful custody of the child; or

(b) If more than one person has lawful custody of the child, all of the persons who have lawful custody of the child, excluding any person who is unavailable or unable to act, as the context requires.

13The Act does not require or permit the CFSRB to make a determination as to the clinical wisdom or the validity of a decision made by the Respondent Society in the situation under review by the CFSRB and for which the Respondent Society is giving its reasons under s.120(4)5 of the Act.

ANALYSIS

14There is a history of involvement by the Respondent with the Applicant in relation to the Child dating back to March 2021. At that juncture, the evidence suggests that there was a temporary joint custodial arrangement between the mother and the father of the Child.

15In March 2021, the Respondent conducted a child protection investigation into allegations by the Applicant that the Child was being sexually and physically abused by her father. The Applicant reported various marks and bruises to the Child that she believed were suspicious. She also reported observations of ‘masturbatory behaviour’. The child protection investigation conducted by the Respondent included a consultation with the Suspected Child Abuse and Neglect team at the Toronto Hospital for Sick Children. The investigation concluded that child protection concerns were not verified. A letter dated July 2, 2021 was sent to the Applicant by the Respondent confirming the outcome of their investigation and that the file was being closed.

16There was a brief contact between the Applicant and the Respondent in October 2021. At the time, the Applicant did not reside in the Respondent’s jurisdiction and there was an open file with another children’s aid society. The Respondent did not conduct an investigation and there was no further involvement by the Respondent with the Applicant at this time.

17As stated above, a court order was made in December 2021 granting sole final decision-making authority for the Child to her father (“Custody Order”). The issues for determination at this hearing are the Applicant’s allegations for the period after December 2021.

18In her examination-in-chief, the Applicant testified that she contacted the Respondent every couple of months regarding injuries to the Child including bruises, black eyes, a broken arm, and injuries from falling into a fire. It was the Applicant’s evidence that she also reported concerns about the father leaving the Child in the care of strangers, the Child being responsible for the care of younger children in the home, the father not attending to the Child’s medical needs, the Child being struck by another child in the home and, the Child missing over fifty days of school.

19It was the Applicant’s evidence that none of her concerns were heard by the Respondent. The Applicant testified that she had not received a response from the Respondent to her concerns over the past five years, and that every time she reached out to the Respondent, nothing was done and nobody called her back. It was her evidence that the Respondent did not investigate any of her reported concerns.

20The Applicant contacted the Respondent with numerous reports of concerns about the Child as set out below.

January 2022

21The Applicant contacted the Respondent on January 27, 2022 and spoke with Lindsay Wilson, a Child Protection Worker employed by the Respondent and the Intake Screener for this report. It was Ms. Wilson’s evidence that the Applicant made a lengthy report regarding her concerns about the father’s care of the Child and her dissatisfaction with the family court custody order. The Applicant indicated that she did not know the Child’s whereabouts and that the Child’s father was not communicating with her or sharing information with her.

22In response to the Applicant’s report, Ms. Wilson contacted the Child’s father to ascertain the Child’s whereabouts and wellbeing. It was Ms. Wilson’s evidence that she did not have concerns after speaking with the father that would warrant a child protection investigation, and that she informed the Applicant of this.

23During cross-examination, the Applicant initially stated that she did not remember the nature of her discussion with Lindsay Wilson. As the cross-examination progressed, the Applicant agreed that she likely expressed concern about the manner in which the custody order was being followed. She added that she likely told Ms. Wilson about more bruises and expressed concern about the Child’s resistance to returning to her father’s care.

24It is Ms. Wilson’s evidence that she advised the Applicant on January 28, 2022, by way of voicemail, that her report did not meet the threshold for a child protection investigation. It is Ms. Wilson’s evidence that she shared with the Applicant that she had spoken with the Child’s father and made him aware of her concerns. Ms. Wilson recommended the Applicant seek legal advice regarding her concerns about the family court order and encouraged her to try and communicate directly with the Child’s father.

25Although she initially denied there being any follow up by the Respondent to her January 27, 2022, the Applicant acknowledged in cross-examination that that it was possible Ms. Wilson had followed up with her and advised her that her concerns were insufficient to suggest risk to the Child and did not meet the threshold for a child protection investigation.

26I find that the Respondent heard the Applicant’s concerns reported on January 27, 2022 and that it provided her with reasons for not proceeding with a child protection investigation.

September 2022

27The Applicant’s next report to the Respondent was on September 5, 2022 at which time the Applicant contacted the Respondent’s After-Hours Service. The Respondent’s After-Hours Service is provided by the Children’s Aid Society of Toronto (“CAST”). The Applicant reported concerns that the Child had fallen off a trampoline at a birthday party and broken her arm. She also expressed concern that the Child had a lung infection and had to be taken to hospital by the father.

28Becky Douglas is a Child Protection Worker employed by the Respondent and was the Intake Screener assigned to this file opening.

29During cross-examination, the Applicant acknowledged that she had spoken with three child protection workers in relation to this report. During cross-examination by Respondent’s counsel, she acknowledged that the child protection workers with whom she spoke had given her an opportunity to raise her concerns and that they had listened to her concerns.

30The Applicant also acknowledged that Ms. Douglas advised her the information she had provided did not meet the threshold for initiating a child protection investigation. Ms. Douglas’ evidence during cross-examination was that the Respondent did not conduct a child protection investigation in relation to the broken arm as there was no information that it was anything more than an accident and was not related to the care or supervision provided to the Child.

31I find that the Applicant was provided with an opportunity to express her concerns, as she herself acknowledged in cross-examination. I further find that the Respondent provided the Applicant with reasons for not proceeding further with a child protection investigation.

November 2022

32On November 28, 2022, the Applicant contacted the Respondent’s After-Hours Service. She reported concerns about inadequate supervision of the Child by the father. Specifically, it was the Applicant’s evidence that she advised the Respondent the Child was being teased and tormented by an older step-brother.

33The Respondent conducted a child protection investigation in relation to the November 28, 2022 report by the Applicant. Amy Hollister is a Child Protection Worker employed by the Respondent. She was assigned to conduct the child protection investigation.

34It was the evidence of Ms. Hollister that she advised the Applicant of the child protection investigation including that she had met with everyone in the father’s home, and found there was no evidence to suggest the Child was unsafe in the home. Ms. Hollister advised the Applicant that the Child’s father was addressing the sibling issues in the home. Ms. Hollister testified that she answered the Applicant’s questions regarding her receiving disclosure from the Respondent. It was also Ms. Hollister’s evidence that the Applicant told her she was not being allowed phone calls with the Child, and had not seen the Child in four months. This was the reason the Applicant contacted the Respondent as the father had sent her the X-ray of the Child’s broken arm but not provided her with an explanation as to the cause of the break.

35The Respondent provided the Applicant with a Closing Letter dated February 17, 2023 confirming that the child protection investigation had concluded and that the concerns about inadequate supervision in the father’s home were not verified.

36The Applicant initially denied being aware that the Respondent conducted a child protection investigation. However, during cross-examination, the Applicant said she remembered being advised by a child protection worker, possibly Amy Hollister, that the Child’s father was trying to remedy the situation suggesting she was aware of the investigation.

37The Applicant did not deny receiving the Respondent’s letter dated February 17, 2023 regarding this investigation.

38It was apparent from her evidence during the hearing that the Applicant did not understand that notice her protection concerns had not being verified did not mean there had not been an investigation, and that notice a file had been closed did not mean one had never been opened.

39I find that the Respondent heard the Applicant’s concerns reported on November 28, 2022 as demonstrated by it conducting a child protection investigation, and that they provided the Applicant with reasons for its decision not to verify the child protection concerns including by the letter dated February 17, 2023.

July 2023

40Amy Hollister conducted a child protection investigation further to concerns reported by the Child’s school in relation to the father in June 2023.

41During the course of this investigation, the Applicant called the Respondent’s After-Hours Service on July 17, 2023 and received a follow up call from Child Protection Worker and Intake Screener, Becky Douglas, on July 21, 2023. The Applicant expressed to Ms. Douglas that she did not believe her concerns were taken seriously by the Respondent. She asked to speak with a supervisor.

42On July 27, 2023, Amy Hollister attempted to follow up with the Applicant with respect to her calls to the After-Hours Service and with Ms. Douglas. It was Ms. Hollister’s evidence that she was unable to reach the Applicant nor was she able to leave her a message as her voicemail box was full. The Applicant acknowledged that her voicemail box may have been full when Ms. Hollister attempted to reach her.

43It was the Applicant’s evidence that, during this period, she did not make any reports of protection concerns to the Respondent and, instead, she testified that she asked others to make reports as she felt she was not getting any responses from the Respondent.

44Regarding the Applicant’s evidence that she had others make reports on her behalf, on August 11, 2023, Natalie van Eck, Mental Health Court Worker, Canadian Mental Health Association, contacted the Respondent relaying the Applicant’s concerns about the Child. Ms. van Eck spoke with Becky Douglas. It was Ms. Douglas’ evidence that she asked Ms. Van Eck for a contact number for the Applicant and was told the Applicant did not consent to her providing the Respondent with her contact number.

45At the request of the Applicant, the Respondent provided her with a Closing Letter dated March 21, 2024 confirming the allegations of inadequate supervision of the Child by the father were not verified which the Applicant acknowledged receiving.

46I find that there was no new report of protection concerns by the Applicant in July 2023 but, rather, a reiteration of prior concerns and the Applicant’s views about the responses she had received. I further find that the Applicant was heard by the Respondent and that, absent a new report, there was no decision to be made affecting the Applicant’s interests.

September 2023

47On September 13, 2023, the Applicant called the Respondent and asked to speak with a supervisor.

48On September 15, 2023, Meghan Russett, Service Supervisor, attempted to contact the Applicant. It was Ms. Russett’s evidence that she was unable to reach the Applicant as the call went to voicemail and her voicemail box was full.

49During cross-examination, the Applicant acknowledged that there were periods her voicemail box was full. There was no evidence of follow up calls to the Respondent by the Applicant.

50I find the Respondent attempted to provide the Applicant with an opportunity to be heard. The Respondent cannot be faulted for being unable to reach the Applicant due to her voicemail box being full.

February 2024

51On February 28, 2024, the Applicant contacted the Respondent and asked to speak with a supervisor.

52On March 1, 2024, Ms. Russett spoke with the Applicant by phone. It was Ms. Russett’s evidence that the Applicant raised her concerns about the Child not receiving proper care by the father and referenced the incident of the Child being injured at a campfire.

53Ms. Russett’s evidence is that she advised the Applicant that the concerns she was expressing had been looked into previously by the Respondent and the Respondent would not be opening a new investigation into the same concerns.

54I find that the Respondent provided the Applicant with an opportunity to express her concerns about the Child and that the Respondent provided the Applicant with reasons for not initiating an investigation, the reason being it had already investigated the concerns.

March 2024

55On March 13, 2024, the Applicant contacted the Respondent and spoke with Kirsten Day, Child Protection Worker and the Intake Screener at the time of this report.

56It was Ms. Day’s evidence that during their twenty-five-minute conversation, the Applicant shared her concern about the Child’s interactions with her older brother as well as concerns about the Child’s hygiene and clothing in the father’s care. Ms. Day advised the Applicant that either she or another child protection worker would speak with the father about her concerns either through an investigation or a phone call after she consulted with a supervisor.

57Due to a recently closed community link and prior investigation completed in September 2023 for similar concerns that were not verified, Ms. Day completed a community link phone call with the father where she reviewed all the Applicant’s concerns.

58As noted above, the Respondent provided a Closing Letter to the Applicant dated March 21, 2024 that confirmed concerns of inadequate supervision by the father were not verified.

59I find that the Respondent heard the Applicant, and followed up with the call to the Child’s father as it advised the Applicant it would do.

May 2024

60On May 20, 2024, the Applicant contacted the Respondent’s After-Hours Service to report concerns about the father’s care of the Child. At this juncture, the mother and father were required to communicate through a third party.

61On May 22, 2024, Becky Douglas, a Child Protection Worker and the Intake Screener assigned to this report spoke with the Applicant by phone to discuss her concerns. It is Ms. Douglas’ evidence that she listened to the Applicant’s concerns and asked questions about the reasons for her concerns. She advised the Applicant that some of the concerns she had expressed were not child protection matters and others were ones she had previously reported to the Respondent.

62The Applicant’s principal concern was that the Child had lost a tooth and a second tooth was loose. The Applicant attributed the lost tooth and loose tooth to interactions between the Child and her younger brother.

63Ms. Douglas contacted the Child’s father who indicated the Child had two loose teeth as was normal for a child her age and an explanation was provided as to how one of the loose teeth fell out.

64The Respondent provided the Applicant with a letter dated May 23, 2024 that explained loose teeth were normal given the Child’s age, that the risk to the Child did not meet the threshold for an investigation and no further action would be taken. The Applicant acknowledged receiving this letter.

65I find that the Respondent provided the Applicant with an opportunity to be heard in relation to the concerns she reported on this occasion and with reasons for its decision not to take further action on this report.

CONCLUSION

66For the reasons set out above I find the Applicant has failed to establish that the Respondent breached its obligations under sections 120(4)4 and 120(4)5 of the Act.

ORDER

67The Application is dismissed.

CONFIDENTIALITY ORDER

68Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclosure 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.