AJ and KJ v. Durham Children's Aid Society, 2024 CFSRB 68

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AJ and KJ Applicants

-and-

Durham Children's Aid Society Respondent

DECISION

Adjudicator: Lise Henrie Date: June 18, 2024 Citation: 2024 CFSRB 68 Indexed As: AJ and KJ v Durham Children's Aid Society (CYFSA s.120)

APPEARANCES

Jordana Baumgartner, Paralegal AJ and KJ, Applicants

Angelia McLean, Counsel Durham Children's Aid Society, Respondent

OVERVIEW

1This is an Application to the Child and Family Services Review Board (“CFSRB”) filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”). A hearing was held by videoconference on May 30th, 2024.

ISSUES

2The Applicants’ complaints are as follows:

1. The Applicants allege that the Respondent did not explain how it complied with Standard #2 of the Ontario Child Protection Standards (OCPS) during its investigations related to allegations made against Applicant A, including the seeking of information related to the complainant in files and logs, interviewing the alleged victim, staff witnesses and others identified by the Applicants, and examining the physical layout where the alleged incident occurred.

2. The Applicants allege that the Respondent did not explain how the actions taken by its workers, including TC, complied with standards of service expected of the Respondent given alleged actions taken by Respondent workers with the Applicants and their family during the investigations.

3. The Applicants allege that the Respondent did not explain the protocol that existed as between the Respondent and the Durham Regional Police Service and how/why that impacted on the Respondent’s own investigations related to Applicant A.

4. The Applicants allege that the Respondent failed to explain why it would not provide the Applicants with financial assistance and counselling support as allegedly requested by the Applicants.

5. The Applicants allege that the Respondent failed to explain how it made two verification decisions related to the Applicant A that were in accordance with the Ontario Child Protection Standards.

3The Respondent (hereinafter “the Society”) submits that it complied with section 120(4)5 of the Act.

RESULT

4The Application is granted.

ANALYSIS

Context

5The Applicants have been married 15 years and have five children. Applicant K had three children when he married Applicant A and they had two children together. The Society became involved in their lives on August 31, 2022, after the Society was made aware of allegations that Applicant A committed a criminal offence on a minor. Applicant A was acquitted of all charges after a four-day trial and the Society closed the file on March 24, 2023.

1. Did the Society explain how, in its view, it complied with Standard #2 of the OCPS?

6The intent of OCPS Standard #2 is stated as:

“The requirements in the standard are designed to ensure that investigations are thorough and that all reasonable efforts are made to collect information/evidence that is relevant to the investigation.”

7The Applicants sought clarity on what steps were taken for the two investigations, family-based and institutional, as well as who approved the steps. The Applicants also sought clarity on how the community caregiver investigation was conducted.

8According to Standard #2, an institutional investigation includes the following investigation steps:

“(Note: steps 1-2 in institutional investigations are always completed):

1. interviews with the alleged victim(s), staff witnesses (current and former), child witnesses, facility administrator, supervisor of the alleged perpetrator and the alleged perpetrator;

2. examination of the physical layout of the setting;”.

9The Applicants submit that the Society failed in doing a proper investigation, according to its protocol, before making decisions that had a considerable financial and psychological impact on the Applicants’ family. Applicant A testified that on August 31, 2022, her children were with her husband at their trailer and was expecting to join them for the long weekend. She said that that evening a Society worker, C, came to her home to advise her that she could no longer be with her children. She said that C told her that he could not tell her why because there was an ongoing police investigation.

10In her testimony, Applicant A said that she did not see her children for four days while C developed a safety plan for her children. She said that C told her that she had to sign a safety plan and presented her with two options: either she would move out of the family home, or someone would come live with them to supervise her. She said that C told her that if she did not sign the safety plan, the Society would take the matter to court, and her children would be apprehended. She said that he offered no other option.

11Applicant A testified that her youngest child was 2 years old, and she could not agree to move out. She said that Applicant K pushed back on the options proposed by C. The next day C’s supervisor, T, called the Applicants. According to Applicant A, T said that maybe C had used the wrong language.

12Applicant A said that she understood C’s role to be as a “serious occurrence worker” doing a joint investigation with the police. As an alternative care worker with a society, she said that she asked C when he first came to the home how long it would take to do the investigation and asked him to tell her what the next steps would be. She said that because supervisor T did not provide answers, she sent an email to him and his supervisor. This email of September 14, 2022, was submitted as evidence.

13In this email, Applicant A writes that “Every time I ask a question the response is ‘I cannot share that’ or ‘I don’t know.’ She also writes: “I need this to be broken down. What are your standards? Are they the same as ministry standards? Is there not an expectation of me to know – what comes next? What is the protocol for Durham CAS when they are working in conjunction with a police service? Do you have a document you can share to outline this?”

14Supervisor T testified that he called the Applicant the next day and told the Applicants that while he could not provide details such as the youth’s name as there was an active police investigation, he was able to let Applicant A know that the allegations related to her work as an educational assistant. T said that Applicant K could be the person overseeing the supervision of Applicant A. When asked about the repercussions to rescinding the safety plan, T testified that he told the Applicants that apprehension was not something that was considered because Applicant K was a capable parent. T said that he was satisfied that Applicant K would honour the terms of the agreement and did not need to sign.

15Supervisor, T, also testified that during the call, the Applicants did not raise the issue of a protocol between the Society and the police. He said that he did not think to address this as it had been raised in an email. He said that if they had asked him about it, he would have said that the document is not open to the public and that as three parties sign it, it was not his to give out.

16Worker C testified that he followed Standard 2 and said that it allowed for a traditional approach or a customized approach. He said that in this case, he took a traditional approach due to police involvement. He said that the police provided the Society with information on an ongoing investigation relating to Applicant A and asked the Society to open a CAS investigation. Worker C confirmed in his testimony that his investigation consisted of him viewing a recording of an interview conducted by the police with the youth who made the allegations. He said that they ascertained that Applicant A was a parent.

17Worker C said that when he met with Applicant A on August 31, 2022, he told her that the meeting was voluntary and said that the Applicant could seek legal advice. He said that he told her that the Society was conducting a child protection investigation and indicated that in consultation with his supervisor and legal counsel, a 12-hour response was required due to information they received. I do not find that the Society provided reasons as to why it decided to take a 12-hour response approach.

18Worker C testified that he told Applicant A that if she did not agree with a safety plan, the Society would escalate the matter. He said that throughout his carriage of the file, he followed the direction of his supervisor and counsel. He said that he had many communications with the family and was eventually permitted to share some information with the family.

19Based on the evidence before me, I am not satisfied that the Society clearly explained to the Applicants how it followed Standard #2.

2. Did the Society explain how, in their view, actions by its workers comply with standards of service?

20As stated above, the evidence suggests that the Society, notably worker C, did not explain how they complied with the standards of service. Based on the evidence above, I find that the Society did not provide clear reasons to the Applicants as to why they took the position to conduct their investigation in the way they did, such as taking the 12-hour response approach.

3. Did the Society explain their protocol with the Durham Regional Police Service and how/why that protocol had an impact on the Society’s own investigations?

21At the hearing, evidence was presented to show that the Society had given consent for the police to share the protocol wit the Applicants. The Applicants stated that they were provided with a redacted version of the protocol. The evidence suggests that this is no longer an issue.

4. Did the Society fail to explain why it would not provide the Applicants with financial assistance and counselling support?

22Applicant A testified that she had many discussions with Society workers about financial assistance over the course of the file. She said that she was unemployed as a result of the allegations made against her and her husband had reduced hours due to the Society’s requirement for someone to supervise her while she was with her children. She said that she could not pay for a private counsellor to help deal with the impact the allegations had on her. There is evidence of an email sent on September 8, 2022, where she asks for assistance to pay for her daughter’s gymnastics. The response from Worker C was that the Society could not financially support the request. He did not provide any reasons. Applicant A then asked if the Society could help with groceries. Worker C responded by asking Applicant A could confirm with her employer whether she was or was not getting paid. Applicant A said that this question upset her as she said that her employer had laid her off after the Society had contacted them about the allegations. I note that the Society at no time in these email exchanges offer to provide the Applicants with the criteria for financial assistance.

23The Applicants submit that the Society lacked compassion by not assisting the family given the financial consequences of the safety plan imposed. They said that the Society should have offered to pay daycare so that Applicant K could work. Supervisor T’s testified that the Applicants did not meet the eligibility criteria and that every criteria are different. He summarized the criteria as sleeping on the street, not paying for medical services or not eating that night and is assessed on a needs basis. He said that he did not explain these criteria to the Applicants at the time. I find it surprising that if the Society knew that the Applicants didn’t meet the criteria, that they did not let them know.

24Based on the testimony of both the Applicant and the Society’s witnesses, I find that the Society did not provide the Applicants with an explanation as to why they could not receive any financial assistance.

5. Did the Society fail to explain how it made two verification decisions that were in accordance with the Ontario Child Protection Standards?

25Applicant A testified that when her file was closed in April 2023, she filed a Freedom of Information request to obtain information on her file. She said that she understood from her work experience that there was an internal system used by the Society – CPIN. She said that she found out that there had been verifications in her file and was told that the only reason given to her was that it was because she was charged. The evidence provided at the hearing shows that the allegations of abuse by Applicant A in relation to her own children were verified “based on charge.” This suggests that the Society did not do its own independent determination and relied on the police charges.

26Worker P, who took over the file from Worker C, testified that he did not know that there had been verifications. He said that once verifications are made, they remain on file. He said that he was aware of the verifications when he closed the file, but that he did not tell Applicant A about them, nor how to appeal them.

27The evidence shows that it is more likely than not that the Society failed to advise the Applicants of the verification decisions in accordance with the Ontario Child Protection Standards, including providing reasons as to why they made those verifications.

Conclusion

28The onus was on the Applicants to show that it was more likely than not (on a “balance of probabilities”) that they had not been heard or provided with meaningful reasons. For the reasons stated above, I find that the Applicants have met their onus to establish that the Society failed to provide reasons regarding issues #1, 2, 4 and 5. Regarding issue #3, I find that this matter was resolved.

29Finally, the Society presented evidence that that one of the Applicants had shared information about this matter on social media. I remind the Applicants that they are governed by the CFSRB’s confidentiality provisions (see below).

ORDER

30The Society shall provide the Applicants with the following information in writing within 30 days of this Order:

a) an explanation of the difference between family-based and institutional investigations, as well as information on the community caregiver investigation as well as who approved the steps,

b) details on the investigative steps taken and who approved the steps,

c) an explanation of why a 12-hour response was deemed necessary in this case,

d) an explanation of the criteria for financial assistance for counselling, children’s extracurricular activities, groceries, and childcare, as well as how the Society determined that they did not meet the criteria for financial assistance, as testified by supervisor T,

e) an explanation as to what allegations were verified, how each allegation was verified, whether the allegations can be removed from their file, whether the Applicants can appeal the allegations.

CONFIDENTIALITY ORDER

31Pursuant 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.