MG v. Nogdawindamin Family and Community Services, 2024 CFSRB 93

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MG

Applicant

-and-

Nogdawindamin Family and Community Services

Respondent

DECISION

Adjudicator: Catherine Bickley

Date: August 30, 2024

Citation: 2024 CFSRB 93

Indexed As: MG v Nogdawindamin Family and Community Services

(CYFSA s.120)

APPEARANCES

MG, Applicant

Self-represented

Nogdawindamin Family and Community Services, Respondent

Réjean Parisé, Counsel

Introduction

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”).

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

3The Applicant and her ex-partner, MH, are the parents of one child. They are separated. During the time period covered by the Application, MH was employed by the Respondent.

issues

4Did the Respondent hear the Applicant’s concerns and give her meaningful reasons regarding the following:

• An alleged breach of confidentiality in 2018
• A potential conflict of interest
• Failure to disclose the Applicant’s file
• Decisions and actions by the Respondent regarding investigations
• A 2021 referral by the Respondent to another child welfare agency

RESULT

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

• The Applicant has not provided persuasive evidence that there was a breach of confidentiality in 2018.
• The Respondent did not provide the Applicant with a meaningful explanation of how it handles potential conflicts of interest.
• During the course of the hearing, the Respondent provided a meaningful explanation of why it initially denied the existence of any file concerning the Applicant’s family.
• The Respondent’s attempts to provide the Applicant with reasons for its decisions was thwarted by the Applicant’s refusal to meet with the Respondent.
• The Respondent has provided meaningful reasons for the 2021 referral to another child welfare agency.

analysis

The Applicant’s concerns regarding the alleged 2018 breach of confidentiality

6In 2018, both the Applicant’s employer and the Respondent, where MH worked, reserved tables at a local Christmas gala. The Applicant stated that she told the Executive Director of her agency that she was concerned about encountering MH at the gala. She testified that after this conversation, she received a long and angry telephone call from MH who said that her Executive Director had spoken with his Executive Director. She testified that MH asked “why are you trying to ruin my career?” She further testified that harassment from MH continued for some time.

7The Applicant has not presented persuasive evidence that her confidentiality was breached. The Applicant declined to cross-examine MH on his affidavit denying the Applicant’s allegations that the Respondent breached her confidentiality in speaking with him in advance of the Christmas gala. MH swore in his affidavit that no child protection concerns “about me or my family” were brought to his attention by any Respondent staff in December 2018 or December 2019. The Applicant’s failure to cross-examine MH leaves this sworn testimony unchallenged.

8Further, I draw an adverse inference from the Applicant’s failure to call as a witness a co-worker who the Applicant said overheard the alleged angry telephone call from MH. The Applicant filed a witness statement from the co-worker but did not call the co-worker to testify. In the absence of the co-worker’s attendance at the hearing, I give no weight to that witness statement.

9Finally, a December 13, 2018 email from the Applicant to MH contradicts the Applicant’s testimony. In that email, the Applicant states that MH is “a good father” and that she bears some responsibility for the “unhealthy relationship” between herself and MH. The Applicant’s failure to cross-examine MH when given the opportunity to do so undermines her argument that she wrote the email in an attempt to end harassment by him.

10Given that the co-worker did not testify and MH was not cross-examined on his affidavit, I am unable to find that the telephone conversation happened as described by the Applicant. I am thus left without any persuasive evidence that the Applicant’s executive director contacted the Respondent’s executive director who in turn spoke to MH about the Applicant’s concerns.

11Since the Applicant has not established that there was a confidentiality breach by the Respondent in 2018, I am unable to reach any conclusion about how the Respondent may have dealt with the Applicant’s concerns in this respect.

Potential Conflict of Interest/Lack of File Disclosure

12These two issues are intertwined and will accordingly be dealt with together.

13The Applicant testified that because MH worked for the Respondent, she had doubts about the ability of the Respondent to objectively provide services to her family. For this reason, when the Respondent told her that there was no file in her name, she thought the Respondent was protecting MH. In other words, she thought there was a conflict of interest which had led to a coverup.

14When a child welfare agency is investigating or otherwise providing services to a family, and it employs a member of that family, it is incumbent on the agency to recognize that there may be a conflict of interest. It must not only take steps to deal effectively with the potential conflict of interest, it must also explain those steps to the individuals involved. Only then can an individual be confident that their concerns will be dealt with in an unbiased manner. A careful and transparent avoidance of conflicts of interest is particularly important in a relatively small community such as the one in which the Applicant lives.

15I find that the Respondent failed to provide the Applicant with this necessary information. As a result, it missed the opportunity to allay her concerns and to provide her with meaningful reasons for its actions aimed at avoiding any potential conflict of interest.

16The Respondent’s denial that it had a file in the Applicant’s name raised understandable concerns. Indeed, in the Application, the Applicant identified her “largest concern” as the Respondent’s assertion that it had no records of her contacts with it. Being told that no file existed heightened her suspicion that the Respondent was hiding something.

17The Respondent’s initial response to the Application was to assert that it had not provided any services to the Applicant and that no file existed. The Respondent corrected that statement, in a January 5, 2022 letter, prior to the hearing, as follows:

… there is a file and the disclosure request will be accommodated. [The Applicant] made a disclosure request to the employee assigned to answer disclosure requests. That employee was not able to access the file as any file relating to an employee is sealed and only to be viewed by person of authority in the administration. The disclosure employee was correct in stating, in her search, there was no file, as even the existence of a file is not disclosed, due to privacy issues, to the disclosure worker. That employee is now aware that if a request for disclosure relates to an employee, to process the request in liaison with a person of administrative authority.

18The Applicant confirmed that she has received her file.

19I find that the Respondent has now provided an explanation for its initial claim that the Applicant had no file with the Respondent.

The Respondent’s Decisions Regarding Investigations and Provision of Service in 2019 and 2021

20The CFSRB does not have the jurisdiction to evaluate the substantive decisions of the Respondent regarding investigations and other service provision. My focus is on whether the Respondent considered the Applicant’s concerns and provided her with meaningful reasons for its actions or inactions.

21With respect to her concerns in September 2019 about her daughter’s wellbeing while in MH’s care, the Applicant stated she was not given much information about what was happening. She heard that her daughter was interviewed by Respondent staff but felt that if interviewed at MH’s home, her daughter would not have felt that she could speak openly. I accept the Respondent’s documentation which records not only the interview of the Applicant’s daughter but also contact with the maternal aunt, a psychiatrist, and two other collateral sources of information. These actions demonstrate that the Respondent considered the Applicant’s concerns and conducted an investigation as a result of hearing those concerns.

22In May 2021 the Applicant again sought services from the Respondent. Her communication with the Respondent was, however, inconsistent. She alternately sought and rejected contact with Respondent staff. For example, in May 2021 she told the Respondent she was not willing to work with it. Yet in a May 30, 2021 email to the Respondent, the Applicant requested access to her file and the opportunity “to sit with someone and have explained to me what was done last time” as she did not remember what she had told the Respondent. Then, in June 2021, she sent the Respondent an email stating that she was moving out of the Respondent’s jurisdiction and leaving her daughter with MH.

23I accept the testimony of Respondent Supervisor Heather Auger that in 2021 she made several attempts to contact the Applicant through text, phone calls, and attending at the Applicant’s home. For example, on June 1, 2021, Ms. Auger and another worker visited the Applicant’s home. Although they saw the Applicant outside the home, the Applicant said “I do not want to speak with you … go away.” The Applicant’s current partner confirmed in his testimony that the Applicant felt she would not be heard by the Respondent because of the potential conflict of interest regarding MH. He testified that she felt her concerns would be ignored or swept under the rug. He also confirmed that when an appointment was set up with Respondent staff and they came to the house, the Applicant refused to speak with them. He said “she never wanted [the Respondent] involved at all.”

24The Respondent cannot be held responsible for failing to provide the Applicant with reasons for decisions when the Applicant refused to meet with its staff. Therefore, I find that the Applicant has not established that the Respondent failed to fulfil its obligations under the Act in this regard

The Applicant’s concerns about the transfer of her file to another agency

25The Applicant was concerned that “the ball was dropped” when the Respondent decided she no longer fell within its jurisdiction and she was thus referred to another child welfare organization.

26It became apparent during the hearing that when the Respondent initially provided services to the Applicant, it believed she fell within its jurisdiction due to membership in a particular band. Later, it became aware that the Applicant was not eligible for band membership and thus did not fall within its jurisdiction. Accordingly, it redirected the Applicant’s concerns to another child welfare agency. The Applicant stated that she had only recently learned that she was not eligible for band membership. I conclude that both the Applicant and the Respondent originally had a good faith belief that the Applicant was eligible for the Respondent’s services. When the Respondent learned that she was not, it made a referral to the appropriate child welfare agency.

27The Respondent filed a June 1, 2021 letter that it sent to the other child welfare agency. The letter outlined the Applicant’s concerns and requested that the other agency interview the Applicant and her daughter. The Applicant questioned why she did not receive a follow up from that agency. The Respondent cannot be held responsible for any failures on the part of another organization.

28Two Respondent staff tried to meet with the Applicant on the date the letter was sent to the other child welfare agency. The Applicant refused to meet. I accept the Respondent’s submissions that if the Applicant and Respondent staff had met on June 1, 2021, there would have been the opportunity for a full explanation of the jurisdictional issue which resulted in the referral to the other agency.

29The Applicant acknowledged in cross-examination that she now has a better understanding of “the jurisdictional piece.”

30I find that the Respondent attempted to explain the jurisdictional issue to the Applicant but was thwarted by her refusal to meet with its staff. In those circumstances, the Respondent cannot be held responsible for not providing reasons. Therefore, I find that the Applicant has not established that the Respondent failed to fulfil its obligations under the Act in this regard

conclusion

31For the reasons set out above I find that the Applicant has failed to establish that the Respondent breached its obligations under sections 120(4)4 and 120(4)5 of the Act, with the exception that the Respondent failed to provide the Applicant with meaningful reasons for its decisions and actions regarding the potential conflict of interest raised by MH’s employment with the Respondent.

order

32The Application is upheld in part.

33Within 30 days the Respondent shall provide the Applicant with a written explanation of the steps it takes to deal with a potential conflict of interest when it employs a member of a family that is being investigated or is otherwise seeking or being offered services. The Respondent shall also provide the Applicant with a copy of any written policy the Respondent has regarding potential conflicts of interest.

confidentiality order

34Pursuant 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.