CHILD AND FAMILY SERVICES REVIEW BOARD
G.A.
v.
Family and Children’s Services of the Waterloo Region
REASONS FOR DECISION ON MERITS
Indexed as: G.A. v. F&CS of the Waterloo Region (CFSA s.68)
Related Decisions: Reasons for Decision on Jurisdiction – G.A. v. F&CS of the Waterloo Region (CFSA s.68), 2007 CFSRB 24
HEARING
1A hearing was held on this Application before the Child and Family Services Review Board on October 31, 2007. The Applicant appeared in person. The Applicant’s wife was present. The Respondent, Family and Children’s Services of the Waterloo Region, was represented by its legal counsel, Kim Putman. With the consent of the parties, the Board received into evidence from the Applicant the following documents marked as Exhibits:
Exhibit 1: letter dated August […], 2005, on the letterhead of the Children’s Aid Society of Hamilton under the signature of D.H., Child Protection Worker, and L.G., Supervisor, addressed to the Applicant and his wife;
Exhibit 2: letter dated August […], 2005, on the letterhead of the Children’s Aid Society of Hamilton, under the signature of D.H., Child Protection Worker, and L.G., Supervisor, addressed to L.L.;
Exhibit 3: Risk Assessment Model for Child Protection in Ontario, revised March, 2000;
Exhibit 4: Publications: Allegations of Child Abuse in the Context of Parental Separation; a discussion paper; a discussion paper presented to Family, Child & Youth Section, Department of Justice, Canada, 2001;
Exhibit 5: Document Brief submitted by the Respondent.
2The Applicant was sworn and gave evidence. The Society’s counsel made submissions to the Board.
FACTUAL FINDINGS
3In May, 2005, the Society received a referral from C.M. of the Red Cross that following a presentation on child abuse in school, the step-daughter of the Applicant reported on a feedback form “I think abuse is horrible, no one should have to deal with it. A year before my dad (stepfather) left he touched me. I told my mom the next day but he denied it. I don’t think that should have to happen to anyone.” The Society responded by contacting the child’s mother, E.A. The Applicant was formerly married to E.A. and was stepfather to a daughter and son. It was determined that the alleged incident took place approximately 3 years earlier. The Society reported the disclosure to the Waterloo Regional Police. The Waterloo Regional Police contacted Caledon OPP as the place of the alleged incident was in the jurisdiction of that Police force. On June […], 2005, Detective B.C. of the Waterloo Regional Police and P.K., a child protection worker with the Society, interviewed the Applicant’s step-daughter. As a result of that interview the Society decided that a credible disclosure had been made. Based on this disclosure, charges under the Criminal Code against the Applicant were laid by Caledon OPP. The interview with the Applicant’s step-daughter was video and audio recorded and subsequently converted to DVD format. The step-daughter’s brother, J., was not interviewed as this interview was declined by E.A. E.A. did state that she asked J. if he had ever been abused by the Applicant and his answer was no. The Applicant himself was not interviewed by the Society. The Applicant, his wife, and his wife’s daughter, L.L. were contacted by the Children’s Aid Society of Hamilton. That Society acted on the disclosure from the Respondent Society to investigate regarding the concerns for the safety of L.L. L.L. disclosed no abuse incidents or concerns with respect to Applicant.
4As a result of the disclosure by the Applicant’s step-daughter, and the criminal charges laid by the Caledon OPP, the Society informed the Applicant that his name had been submitted to the Ontario Child Abuse Registry. The Applicant was informed of this fact by letter dated August […], 2005, from the Society under the signatures of P.K., Intake Worker, and L.B., Intake Supervisor. The letter is at Tab 3 of the Society’s Document Brief, Exhibit 5.
5On October […], 2007, following a trial in the Superior Court of Justice of Ontario, the Applicant was acquitted on the charges laid by Caledon OPP.
6As a result of his acquittal, the Applicant wrote to the Management Support Branch, Child Abuse Register of the Ministry of Children and Youth Services and requested that his name be removed from the register. The Society was requested by A.W., data and network administrator for the Child Abuse Register, to conduct a comprehensive review of the Applicant’s registration. The Society responded by correspondence to the register administrator on December […], 2006 and December […], 2006. Those letters are found at Tab 6 and 7 of the Society’s Document Brief, Exhibit 5.
7The Society concurred with the Applicant’s request to have his name removed from the register. By letter dated December […], 2006, the Applicant was advised by the Director of the Child Abuse Register that his name had been removed from the Child Abuse Register.
ISSUES
8The Board in its written decision dated the 18th of June, 2007, found that it had jurisdiction pursuant to Section 68.1(4) of the Child and Family Services Act, R.S.O. 1990, c. C.11, to consider whether the Society has failed to provide the Applicant with reasons for decisions that affect the Applicant’s interest with respect to the following decisions of the Society:
the decision to place the Applicant’s name on the Child Abuse Register as evidenced by the Society’s letter to the Applicant dated August […], 2005;
the decision to remove the Applicant’s name from the Child Abuse Register as evidenced by the Society’s letter of the […] of December, 2006;
the Applicant’s allegation that the Society’s file with respect to this matter remains open.
9At the hearing the Board was directed in argument by the Society to consider whether any of the foregoing decisions are decisions that affected the Applicant’s interests pursuant to Section 68.1(4), paragraph 5.
10This section does not contain a definition as to what is meant by the words “complainant’s interests”. There is no doubt that the Applicant’s personal interests, viewed subjectively, were significantly affected as a result of the abuse report made by his step-daughter. The Applicant was charged with criminal offences. The Applicant’s new family relationship was investigated. The Applicant endured the criminal process of arrest, preliminary hearing and trial. There were significant financial costs in retaining counsel to defend the criminal charges. The Applicant was personally and emotionally devastated by the allegations and the process that ensued. The Board understands the significant personal, family and financial turmoil that the Applicant experienced as a result of the step-daughter’s report. These consequences however do not follow directly from the decisions of the Society that are being reviewed and considered in this proceeding. The decision to lay criminal charges against the Applicant is solely that of the responding Police force. The Society, under the Child and Family Services Act, had a statutory duty to respond to the step-daughter’s report and to complete an investigation.
11The Applicant gave evidence that his employment, capacity to be bonded, and ability to cross international borders was affected by the Society’s decision to report his name to the Child Abuse Register. The Board finds that reporting to the Abuse Register under the Child and Family Services Act does not have these consequences and does not affect the Applicant’s interests in this way. It is presumed that the Applicant is confusing the Child Abuse Register made pursuant to the Child and Family Services Act with the Sex Offender Information Act. This latter process does not affect the Applicant as he was not convicted of the criminal charge.
12The Board however is of the view that the reporting of the Applicant’s name to the Child Abuse Register is a decision that affects his interests. The Child Abuse Register is a statutorily created record of an abuse report concerning a named individual that is maintained for 25 years. The provisions of Section 75(8) of the Child and Family Services Act provides that the director of the register may permit access to the register by an employee of the Ministry, the Children’s Aid Society or a recognized child protection agency outside the Province of Ontario. The children’s lawyer may have access to the register. The Board finds that the Applicant’s interests as an individual citizen are significantly affected by entering his name in this record. It is relatively permanent and is accessible by other agencies concerned with child protection. This decision affects the personal integrity and privacy of the individual who is reported. The decision to remove a name from the register affects the individual’s interests in privacy and personal integrity in a restorative way. The Board therefore finds that the decision by the Society to report the Applicant to the Child Abuse Register and the decision to agree to remove the Applicant’s name from the Register affects the Applicant’s interests for the purpose of Section 68.1.
DECISIONS MADE BY THE SOCIETY AFFECTING THE APPLICANT’S INTERESTS
13The Society chose to report directly to the Applicant that his name had been submitted to the Ontario Child Abuse Register. The Society’s letter to the Applicant dated August […], 2005 is filed at Tab 3 of the Society’s Document Brief, Exhibit 4.
14The Society is entrusted by statute with the authority to report an individual to the Child Abuse Register. There is a reciprocal expectation to the public individual that the reasons for such reports be communicated in a way that is factually based, reflectively and professionally considered and is accountable to acceptable social work methodology for verifying child abuse reports. The Society’s letter informing the Applicant that his name had been submitted to the Child Abuse Register, fails this expectation in every respect.
15In his written submission to the Board and his evidence in chief at the hearing on October 31, 2007, the Applicant attacked the Society’s interview techniques, methodology and procedures with respect to its verification of the sexual abuse report by his step-daughter. The Applicant alleged that the Society’s verifying processes were faulty. The Applicant submitted that the Society failed to interview him, accepted the refusal of E.A. to permit an interview with her son J., did not properly alert itself to the context of parental separation and the possibility of manipulation by E.A., failed to maintain objectivity in the investigation, actively coached and influenced the Applicant’s step-daughter while she made her recorded statement, failed to collaborate facts and edited the DVD of the Applicant’s step-daughter’s interview. None of the Applicant’s allegations in this respect are adequately proved by the evidence presented by the Applicant in this proceeding. The Applicant submits that the Society’s processes of investigation and verification do not meet the standards of the risk assessment model for child protection filed by the Applicant as Exhibit 3 in this proceeding. In reply, responding counsel for the Society submitted that it does not follow the particular risk management model submitted by the Applicant. The process by which the Society determines the verification of child abuse for the purpose of reporting to the Child Abuse Register is undisclosed.
16The decision by the Society to agree to the removal of the Applicant’s name from the Child Abuse Register is recorded in the Society’s letter dated the […] of December, 2006 to A.W., data and network administrator. This letter is found at Tab 6 of the Society’s Document Brief. This letter was written in response to the letter of A.W. to the Society, dated October […], 2006 in which A.W. advised that the Applicant himself had written to the Register to request removal of his name from the Register. The Applicant made that request following his acquittal of the criminal charges laid in this incident. The Society’s letter of December […] stated in part “We do no believe that he was placed on in error but do believe that information from the original investigation and the Applicant’s criminal trial points to a removal.”
17The Board finds that the content of this letter respecting the reasons that the Society concurred with the Applicant’s request to have his name removed from the Register also fails to meet the expectation that the reasons from such decisions be communicated in a professional manner that discloses the factual consideration on which the decision is based, and the social work analysis and rationale supporting the decision. This letter is at best equivocal and at worst a Parthian remark possibly suggesting the Society was not fully convinced that this was the proper outcome. The director of the Abuse Register, A.W., apparently thought so too. She made a telephone call to the Society on the […] of December, 2006. The details of that telephone call were not given in evidence by the Society. It is noted however that this telephone call did prompt a second letter to the director dated December […], 2006. This letter is Tab 7 of the Society’s Document Brief. This exchange of letters and the intervening telephone call between A.W. and M. of the Society, clearly support a finding that the reasons, the supporting facts and rationale behind the Society’s decision to agree with the Applicant’s request that his name be removed from the Abuse Register, were not fully, adequately and unequivocally disclosed by the letter dated the […] of December, 2006.
ORDERS IN THIS PROCEEDING
18With respect to the decision by the Society to report the Applicant’s name to the Child Abuse Register as reported directly to the Applicant by the Society in its letter of August […], 2005, the Board orders that the Society within 60 days of the date of this decision provide written reasons to the Applicant with respect to this decision in a way that records the full factual basis for the decision, that documents and explains the social work process through which this decision was reached and discloses the social work standards and methodology by which the abuse report was professionally verified. The Board notes that the Society has disclosed to the Applicant in this proceeding a copy of its Form 1 report to the Child Abuse Register.
19With respect to the decision of the Society to agree with the Applicant’s request to have his name removed from the Register, the Board makes no order with respect to the reasons for the decision. The Board is satisfied that the release of the two letters from the Society to the director of the Child Abuse Register is sufficient disclosure and explanation for that process.
20The Board has also reviewed the Applicant’s allegations that his file with the Society concerning the incident giving rise to the submission of the Applicant’s name to the Child Abuse Register remains open. Tab 9 of the Respondent’s Document Brief filed as Exhibit 5, is an Affidavit filed by K.F., Supervisor of technical services for the Society. K.F.’s Affidavit describes the manner in which the Agency’s file with respect to the Applicant and the surname of the Applicant is recorded. The Children’s Aid Society has a statutory obligation to keep and maintain records of its investigations respecting child protection. Accordingly, there will be kept a record of the incident involving this Applicant. The Board is satisfied on the evidence in this Affidavit that the Applicant’s file although recorded and accessible does not exist today as an open, active, ongoing file. The Board accordingly makes no order with respect to the Applicant’s file.
Richard J. Linley
Presiding Member
Deborah Simon
Panel Member
Lorna King
Panel Member
Dated at Toronto, Ontario this 4th day of December, 2007.