CM and LB v. Halton Children's Aid Society, 2024 CFSRB 154

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

CM and LB Applicant

-and-

Halton Children’s Aid Society Respondent

DECISION

Adjudicator: Donna A. Wowk Date: December 20, 2024 Citation: 2024 CFSRB 154 Indexed As: CM and LB v Halton Children’s Aid Society (CYFSA s.120)

APPEARANCES

CM and LB, Applicants Self-represented

Halton Children’s Aid Society, Respondent Lucia Spampinato, Counsel

OVERVIEW

1This is an Application filed with the Child and Family Services Review Board (“CFSRB”) 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 November 20, 2024.

ISSUES

2The issues under subsections 120(4)4 and 120(4)5 of the Act are:

• Did the Respondents fail to provide the Applicants with reasons for the decisions it made during its 2022 investigation, including why their file was closed with no safeguards put in place?
• Was the Applicant, Lisa Bastarache (“LB”), heard when she raised concerns about her daughter’s rights under The Canadian Charter of Rights and Freedoms (“the Charter”) and her rights under the Convention on the Rights of the Child (“the Convention”)?
• Did the Respondent fail to provide reasons to LB for the decisions it made in response to concerns 3rd parties raised regarding contact between Caleigh MacPherson (“CM”) and her other parent?

RESULT

3Having reviewed the testimony and documents presented at the hearing, I find the following:

1. The Respondent provided the Applicants with reasons for the decisions it made during its 2022 investigation, including the reason their file was closed with no safeguards put in place.
2. LB did not raise CM’s rights under The Canadian Charter of Rights and Freedoms (“the Charter”) or under the Convention on the Rights of the Child (“the Convention”) with the Respondent. LB was heard by the Respondent with respect to her concerns about potential contact between CM and PM.
3. The Respondent provided LB with reasons for decisions it made in response to concerns third parties raised regarding contact between PM and CM.

ANALYSIS

Context

4LB and CM are the Applicants. LB is the mother of CM. CM’s other parent is PM.

5There is an extensive history of involvement by the Respondent with this family dating back to 2014. This Application primarily relates to the Respondent’s involvement during and after 2022.

6Commencing in May 2022, the Respondent conducted a child protection investigation, including a joint investigation with Peel Regional Police Service, further to a report by LB that CM had made a disclosure of abuse by PM. At the conclusion of its investigation, the Respondent verified abuse of CM by PM.

7On June 22, 2022, the Respondent advised LB, that it did not have any ongoing child protection issues and would be closing its file.

8The Respondent became re-involved with the family in December 2023 after being contacted by CM with the support of a lawyer. This contact by CM was precipitated by a family court order granting PM supervised parenting time scheduled to start in January 2024. The Respondent opened a file as a Community Link. The Respondent provided services to CM by way of advocacy on the child’s behalf with the Crown Attorney following which it closed its Community Link file on or about March 21, 2024.

9The most recent involvement by the Respondent was for approximately six days in August 2024 at which time LB contacted the Respondent to report concerns after PM was acquitted of the charges related to CM and a family court order was made granting PM unsupervised parenting time with CM.

Issue 1: Did the Respondent provide the Applicants with reasons for the decisions it made during its 2022 investigation, including why their file was closed with no safeguards put in place?

10The evidence of LB is that the Respondent did not speak with her much during the course of its investigation and that it had no discussions with her after it verified the child protection concerns with respect to CM. The Applicant testified that her greatest concern was that the Respondent did not put safeguards in place for CM from PM. It was the Applicant’s evidence that she no longer has the ability to protect CM as family court has made orders for access to CM by PM.

11The child protection investigation in this matter was conducted by Sandy MacDonell, Child Protection Worker employed by the Respondent. Ms. MacDonell testified that she kept LB informed of the steps being taken during the course of the child protection investigation. She provided particulars including supporting documentation by way of Contact Logs.

12It was Ms. MacDonell’s evidence that her discussions with LB included the following:

a) Keeping her informed about Ms. MacDonell’s communications with Victim Services to create a safety plan as LB expressed concerns about PM knowing about CM’s disclosures;

b) Keeping her informed of her communications with CM’s school as LB expressed concerns that PM may try to take CM from the school;

c) Receiving and providing updates to LB regarding the status of therapeutic referrals for CM and suggesting services in this regard; and,

d) Confirming with LB that she was not permitting contact between CM and PM in accordance with conditions imposed in the criminal case.

13LB acknowledged receiving a closing letter from the Respondent dated June 22, 2022 signed by Ms. MacDonell and her supervisor, Meaghan Christie. In its June 22, 2022 letter, the Respondent advised LB that it was closing the file as it did not have any ongoing child protection concerns. The Respondent confirmed its verification of abuse of CM by PM, that criminal charges had been laid against PM, that LB had ensured CM did not have contact with PM in accordance with the criminal conditions prohibiting contact; and, LB had utilized Victim Services as a support. The Respondent suggested additional therapeutic services for CM if required, and invited LB to contact it if she had any questions or concerns regarding the investigation and file closure.

14It was evident from the evidence of LB that her complaint with respect to the Respondent was her view that it ought to have done more to intervene in the family law proceeding between LB and PM in relation to CM, or to start a child protection proceeding.

15The issue before me is whether the Respondent provided the Applicants with reasons for the decisions it made during the 2022 child protection investigation, including with respect to safeguards for CM.

16I find that the Respondent provided LB with reasons for the decisions it made during the 2022 investigation as the investigation unfolded and the reasons it closed the file. There is no evidence that LB contacted the Respondent after receiving the June 22, 2022 closing letter to express concerns about the file being closed. Her issues with the file being arose much later, after an order for access by PM was made in family court and again after PM was acquitted for the criminal charges. These developments precipitated LB’s position that the Respondent ought to have involved itself more in the criminal and family law proceedings and appeal or started a child protection proceeding.

17As far as providing reasons for the decisions it made during this investigation to CM, the child was 11 years old at the time the file was closed and 13 at the time of the hearing.

18Section 3(2) of the Act provides that children have the right:

2. To be engaged through an honest and respectful dialogue about how and why decisions affecting them are made and to have their views given due weight, in accordance with their age and maturity (emphasis added).

19In the context of child protection proceedings, the Act provides that children under the age of 12 who are the subject of the proceeding are not entitled to receive notice of the proceeding or to be present at the hearing unless the court is satisfied that the child is capable of understanding the hearing and will not suffer emotional harm by being present at the hearing.

20CM gave brief evidence at the hearing. She testified that that the school social worker advised her to call the Respondent which she did but “nobody protected me”. CM did not raise concerns or make any allegations that she had not been provided with reasons for any decision made in relation to her by the Respondent.

21I find that Issue 1 was an issue for LB, not for CM. Even if I am wrong, it is also my finding that, having regard to CM’s age, the Respondent providing ‘reasons’ for decisions to LB was tantamount to providing reasons to CM.

Issue 2: Was LB heard when she raised concerns about her daughter’s [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights and her daughter’s rights under the Convention on the Rights of the Child?

22There was no evidence that LB raised concerns about CM’s rights under the Charter or the Convention. LB’s argument is that she raised these concerns indirectly and implicitly through her other expressions of concerns. She argues that child protection agencies are required to be aligned with the Charter and the Convention. The Respondent did not dispute the need for child protection agencies to provide services consistent with the Charter and the Convention.

23It was LB’s evidence that when CM contacted the Respondent in 2023 expressing her fears in relation to the family court order made granting PM supervised access, the child was entitled to protections under the Charter and the Convention. It was further LB’s evidence and argument that, every time she asked for CM’s rights to be respected, including during the 2022 investigation, this ought to have invoked the protections under the Charter and Convention for CM.

24LB was not satisfied the Respondent had done all that it ought to have done to ‘protect’ CM as required by the Charter and the Convention. It was her evidence that the Respondent should have taken a more active role in the family law and criminal proceedings and that it ought to have started a child protection proceeding. However, the sufficiency of the Respondent’s interventions is not before me.

25LB has not demonstrated that she raised concerns about CM’s rights under the Charter or the Convention.

Issue 3: Did the Respondent provide LB with reasons for the decisions it made in response to concerns 3rd parties have raised regarding contact between Ms. MacPherson and her other parent?

26It was LB’s evidence that the Respondent did not provide her with reasons for its response to a referral made in September 2014 by the family doctor, that it did not provide reasons for its decisions in relation to the December 2023 call from CM facilitated by the Law Society of Ontario (“LSO”), and that it did not provide reasons for its response to the concerns of CM’s school social worker in February 2024. With respect to all three of these referrals, LB testified that the Respondent did not respond with safeguards to protect CM and did not provide her with reasons for this.

27Regarding the September 2014 referral, the documentary evidence introduced into evidence by LB confirms that the doctor in question did not have concerns independent of LB and her mother. The doctor assisted LB’s mother in calling the Respondent and gave her the phone to speak with the intake worker. The Respondent conducted an investigation. It did not verify abuse but it did caution both PM and LB regarding the use of physical discipline and about being careful not to expose CM to the adult conflict. Based on the documentary evidence, I find that the Respondent provided LB with reasons for its decisions during the course of this file opening including a fulsome closing letter.

28Regarding the December 2023 referral, an employee of the LSO called the Respondent on December 28, 2023. The caller advised that CM had contacted the LSO for help in finding a lawyer. The caller felt CM needed to speak with the Respondent so had contacted it so CM could speak with a child protection worker. CM was concerned about a supervised access order made in family court as she did not wish to see PM and reported that she was afraid.

29The Respondent opened a Community Link file in relation to the December 2023 referral. It was the evidence of Nicole Clarke, a Child Protection Worker employed by the Respondent, that a referral is opened as a Community Link file when the information provided does not meet the threshold for a child protection investigation, but the family may benefit from follow up. This may include linking families to community resources or help advocating for children.

30During the course of this file opening, Ms. Clarke spoke with CM’s school social worker. It was Ms. Clarke’s evidence that the school social worker expressed concern for CM’s emotional wellbeing due to the upcoming supervised access with PM, and shared that CM had talked about suicide.

31Ms. Clarke testified that she advised CM and LB that the Respondent could not change the family court order and that the risk of harm to CM by way of sexual abuse was mitigated by the access being supervised. However, Ms. Clarke agreed that the risk of potential emotional harm could not be mitigated by supervision of access.

32It was Ms. Clarke’s evidence that she advocated with the Crown Attorney on CM’s behalf. The Crown agreed to look into applying to reverse the variance that had enabled the family court order providing for supervised access. There was also discussion about opening an investigation which may require the file being transferred to the jurisdiction where PM resides. LB asked that an investigation not be opened.

33Based on the oral and documentary evidence, I find that the Respondent provided LB with reasons for its decisions in relation to the referrals in 2014 and in 2023. The issue for LB was not that she was not provided with reasons, it was that she wanted more done by the Respondent.

ORDER

34The Application is dismissed.

CONFIDENTIALITY ORDER

35Pursuant 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.