L.G. v. Durham Children’s Aid Society, 2014 CFSRB 8

CHILD AND FAMILY SERVICES REVIEW BOARD

L.G.

v.

Durham Children’s Aid Society

REASONS FOR DECISION

Date: February 25, 2014

Citation: 2014 CFSRB 08

Indexed as: L.G. v. Durham Children’s Aid Society (CFSA s. 68)

1The Applicants filed an application with the Child and Family Services Review Board (the “Board”) pursuant to subsection 68.1(4) 4 and 5 of the Child and Family Services Act , R.S.O. 1990, c.C.11, as amended (the “Act”) against the Durham Children’s Aid Society (the Society) on October 24, 2013.

2The Applicants alleged that the Society had not heard their service concerns or heard them when decisions were made and had not provided them with reasons for decisions that affected their interests regarding the investigation of their Child from July to September 2013 and specifically relating to:

1: The mistaken information that their son was a foster child;

2: The Society’s decision to interview the son alone;

3: The lack of notification of the September 3, 2013 outcome meeting;

4: The outcome of the investigation;

5: The labeling of their son as a sexual predator;

6: The inclusion of their names on the Provincial Database; and,

7: Advising the Applicants to inform their son’s new school of the Society’s findings.

3The Applicants are Black Canadians and they had raised the matter of racial discrimination at the pre-hearing conference on December 5, 2013, however, during the hearing on January 28, 2014 they did not lead any evidence for the Board to consider the issue of racial discrimination in relation to the right to be heard/reasons.

4The Board had to determine whether the Applicants were heard relating to the investigation of their son, whether they were heard when decisions were made or concerns were raised and whether they were provided with reasons for the decisions. The Society’s position was that the Applicants had been heard and reasons were given to them as appropriate with regards to their son.

5The Board finds that, with respect to some of the Applicants’ complaints, they were not heard and provided with sufficient reasons for the decisions relating to the investigation of their son regarding;

• The Society’s decision to interview the son alone;

• The lack of notification of the September 3 outcome meeting;

• The outcome of the investigation;

• The labeling of their son as a sexual predator;

• The inclusion of their names on the Provincial Database

6The reasons for the Board’s decisions are as follows.

Background

7The Applicants are the parents of a nine year-old boy against whom the Society received a community complaint by telephone on or about July 22, 2013 concerning alleged sexual activity involving other boys at their school. The Applicants are also foster parents to three other children as well as the parents of the boy’s sister.

8During the initial contact the worker realized that the Child was not a foster child, although there were three foster children residing at the home. The worker contacted the Society who had placed the children in the Applicants’ care (the “Other Society”) to inform them of the situation and to discuss next steps. A safety plan was instituted and the worker testified that the foster children were not at risk and he found no protection concerns in the home.

9The Child was interviewed by the worker for ten minutes on July 23, 2013 in his home without his parents being present in the room. The Child did not admit to all of the acts that he had allegedly committed. The Applicants did not hear from the worker regarding the status of the investigation so they contacted him during August, 2013 and were informed that the report was not yet completed. They were subsequently advised about a September 3, 2013 meeting by their foster agency worker who was not an employee of the Society.

10The September 3, 2013 meeting was held at the Society’s office and representatives from the Society, the Applicants’ foster agency and the Other Society were present to hear the outcome of the investigation. Because the Applicants were foster parents they were informed of the investigation outcome at this large meeting instead of at their home which would have been the case for parents who did not foster children. The Applicants testified they were confused by the process and felt that they were not included and that their position as parents was not considered.

11At the conclusion of the investigation, the Society had verified the allegations against the Child. Since the Society was confident that the Applicants had the capacity to address the issue, the file was closed. The Society also advised the Applicants that their names were added to the Provincial Database, which is a legal requirement for all families involved with any Children’s Aid Society.

ANALYSIS

12The relevant legislative provisions under the Act are:

68.1(4). Matters for Board Review

The following matters may be reviewed by the Board under this section:

(4) Allegations that the society failed to comply with clause 2(2)(a);

(5) Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

2(2). Duties of Service Providers

Service providers shall ensure,

(a) That children and their parents have an opportunity where appropriate 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.

13In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 38, 2012-09-21 at paras. 13-14, the Board described the purpose of s.68.1 (4) and (5) and addressed s. 68.1 (4) 4 as follows:

The obligations under s. 68.1 (4) 4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to, or accept decisions.

To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.

14The “right to reasons” under the Act, means a right to a meaningful explanation about decisions that affect the applicant’s interests. In J.G. v. Windsor-Essex Children’s Aid Society (CFSA s. 68), 2012 CFSRB 25 2012-07-11 (para 13) the Board held that:

With respect to this section of the Act, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A complainant must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

1. The mistaken information that their son was a foster child

15The Applicants complained that the Society had difficulties finding the correct information pertaining to their family prior to contacting them on July 22, 2013 and as a result the Child Protection Worker (the “Intake Worker”) treated their son “differently” and attached a foster child “stigma” to him because he believed that the Child was in foster care. The Applicants testified that the Intake Worker reported that the Child had done something “terrible” at school and they believed that he should not have said this about their son prior to investigating the complaint and this was proof of a negative bias on his part.

16During the July 23, 2013 meeting with the Applicants, the Intake Worker speculated that the Child might have picked up sexualized behaviours before coming to live with them, he also theorized that perhaps the child had inadvertently witnessed sexuality between the parents. The Child is the nephew of the Applicants and he had lived with the Applicants who are his parents since he was three months old, and they did not believe any of the Intake Worker’s theories were correct. The father testified that he could see that the Child was being stigmatized because of the Intake Worker’s initial belief that he was a part of the foster care system. He told the Intake Worker that he was labelling the child incorrectly however; he believed that this did not make a difference to the Intake Worker.

17The Applicants testified that the Intake Worker said that he was sorry that he did not initially know that the Child was their son; he was just going with the information that the school principal had given to the Society from the school’s database. His inquiry in the data base of the Society had not been helpful in providing accurate information either. The Applicants’ and the Child’s surnames were different and the Society’s investigation indicated that the Applicants had foster children in their care, so the Society had assumed that the Child was one of the children in foster care.

18The Applicants further testified that before the Intake Worker had concluded the interviews with all of the boys concerned, he had reported that their son was the ring leader of the group. The Applicants believed that the Intake Worker had not gathered all of the facts before he came to this negative conclusion.

19The Society did not clearly answer the Applicants’ complaint that the child was handled in a different manner because of his background except through the testimony of the worker who explained that when he was told that the Child was not a foster child, he continued his investigation considering the child as the Applicants’ son.

20The Society did meet its obligation to the Applicants under s 68 1(4) 4 and 5. The Board did not find evidence that the Intake Worker treated the Child differently because of the initial mistaken information that he was a foster child. The correct parental status of the Child was ascertained during the first day of the investigation after the Society contacted the parents. The Intake Worker testified that he considered the Child as the Applicants’ son during the course of the investigation.

2: The Society’s decision to interview the Child alone

21The Applicants testified that they requested to be present when the Intake Worker interviewed their son on July 23, 2013 but the Intake Worker only allowed them to stay in the living room next to the computer room while the interview took place behind closed doors and they could not hear what was being said.

22After meeting with the Child, the Intake Worker reported to the parents that he was unable to get their son to open up but he had verified that the child had participated in sexual activities at school. The Applicant mother believed that it was unfair for the parents to be in a separate room where they were unable to hear the interview and she believed the Child would have been more comfortable with his parents present. She also said that her son was not given a choice as to whether he wanted to be interviewed with or without his parents and she believed that it was unfair for the Child to be interviewed alone for ten minutes by a total stranger (during which time the Child was reticent) after which very serious charges were verified.

23The Applicants believe that their son is more likely to tell them all of the information because of the strong relationship that they share rather than tell a stranger and while he has admitted to one of the acts at school, he has not admitted to all of the Society’s accusations which were verified during the short interview. The Applicants do not believe that it is appropriate for the Intake Worker to designate him as the ring leader especially as he was the new comer to the group. The Applicant mother also believes that if her son was reticent during the interview and did not tell the Intake Worker the whole story as noted in the case notes, then probably some of the other boys also did not tell him the whole story.

24The Intake Worker testified that the parents did not insist on sitting in the interview room with their son and he did not recall it being a major issue. In his experience, children usually did not want to say sexual things in front of their parents and although the parents were out of sight, they could hear the interview. The interview report dated July 23, notes that the Intake Worker and the Applicants’ son met “in private” and he “updated” the parents with the information that their son had shared. The Society entered evidence that it meets with children sometimes alone and sometimes with their parents depending on whether the child wants their parents to be present or not, however it did not lead any evidence that the Applicant’s nine year old child wanted to be interviewed without his parents.

25The Society’s policy did not preclude the Applicants being in the room with their son and there is no notation on the report indicating that the child did not want his parents to be present in the room. The Society presented case notes to confirm that one of the boys involved did not want his parents present and they sat in the next room where they could hear the interview and yet another boy who had witnessed the situation but had not participated was allowed to have his parents sit in on the interview. The Applicants testified that the layout of their home did not facilitate listening to the interview from the next room with closed doors and they were in fact updated by the Intake Worker who shared information with them after the interview.

26The evidence is contradictory on this issue. The Applicants testified that they expressed their wish to be present but were refused. The worker testified that it was not a big issue at the time. However the worker clearly testified that he did not want the Applicants to be present during the interview. His assessment is that a child will disclose more information if a parent is not present. The Board found that the worker was not open to having the parents participate in the interview and that the Applicants felt they were not heard regarding their request. The evidence does not indicate that the Applicants were given sufficient explanation as to the reasons why they could not be present. The Board found that they were not heard and provided with explanations for the refusal of their request.

3: The lack of notification of the September 3, 2013 outcome meeting

27The Applicants testified that they waited without any communication from the Society to obtain the results of the investigation. On the last Thursday in August their foster agency (not the Society) telephoned to advise that the Society had completed the investigation and a meeting was scheduled for September 3, 2013.

28The Society testified that it was usual for the foster agency worker to advise the Applicants of the date of the meeting instead of the Society because they were foster parents.

29The Board found that the situation was very confusing for the Applicants between their role as foster parents and the investigation affecting them as parents. The fact that it was an employee of the foster agency who informed them of the meeting deprived them of the opportunity to ask questions directly from the persons who were in charge of the investigation and the meeting. They were unable to ask what was going to happen at the meeting and the purpose of the meeting. The Board found that the Society should have contacted the Applicants directly to invite them to the meeting, thereby giving the Applicants an opportunity to ask questions and prepare themselves. The Board concludes that the Applicants were not heard.

4: The outcome of the investigation

30The meeting was held at the Society’s office and in attendance were nine persons including personnel from the Society, the Applicants’ foster agency, the Other Children’s Aid Society as well as two persons via teleconference. The Applicants were shocked at the size of the meeting as they had anticipated a small meeting with their workers to discuss the results of the investigation. They were advised that the investigation had verified that their son had been a participant in sexual activities at his school and that he had placed children at risk.

31The Applicants describe the meeting as walking into an “ambush”. They were told that this meeting was not the appropriate forum to discuss their concerns. They believe that the meeting was unfair because they were not given the opportunity to question, clarify or debate the information. The Applicants found the Society’s information to be vague and non-specific and they did not understand the material. Their request by email on September 12, 2013 that the Society forward its case notes so that they can understand the matter more clearly confirms the Applicants’ confusion and lack of understanding.

32The Applicants felt that the process was unfair for many reasons. They were not present when their Child was interviewed, he was interviewed for ten minutes and they were not given a real opportunity to discuss the situation before the Society came to a final conclusion which would have a very serious impact on their lives. They were not treated like other parents who would have met the Society in their home where they would have been given an explanation of the process and they would have been allowed to give their perspective on the investigation as parents of the Child. Rather, the Applicants were invited to a large meeting with representatives from three different organizations where they were told that the allegations against their son were verified without being given the opportunity to speak as parents.

33The Board finds that the Applicants had reasons to feel that they were not a part of the process and that the conclusion was imposed on them without their input. It would appear that the Society’s practice is that in a case where a referral concerns foster parents who are also parents, the status as foster parents takes precedence over being parents. The Board is of the view that this goes against the rights of parents to be heard and to receive explanations for decisions made according to 2(2)a of the Act. The Applicants were first involved as parents and then as a foster family. The Board finds that the Applicants were not heard and did not receive reasons for decisions made by the Society that affect their interest.

5: The labeling of their son as a sexual predator

34The Society’s letter dated September 3, 2013 advised the Applicants of the verification of the Child’s sexual acting out, the closing of the Society’s file and noted that the Society will not be verifying that the level of supervision in the Applicant’s home contributed to this matter or was somehow a factor.

35The Applicants complained that the Child was labelled a predator by the Society because they coded him 13H and 13G in the Provincial Database which means there was a risk of sexual harm and a risk of sexual behaviour concerning the Child.

36The Intake Supervisor denied that the Child had been labeled a “sexual predator” by the Society but confirmed that the Child was coded 13G and 13H in the Database because of the verified risk of sexual harm and the confirmation of sexual behaviour.

37The Intake Supervisor also advised that the Intake Worker brought all of the parties together and the Society provided the outcome of the investigation after which the expectation was that the Applicants’ resources would provide help and assistance to the family and ensure that counseling and other supports were available to them.

38The Society verified serious sexual allegations against the Applicants’ nine year old son and yet it did not discuss its findings with them or seek to have their input into the investigation prior to the confirmation of the allegations. The Society did not provide any explanations in its two written correspondences to the Applicants nor were efforts made to help them to understand why their son’s behaviour merited the codes which the Society had assigned to him in the database and which they interpreted as labelling their child a sexual predator for the rest of his life. This coding of the Child’s behaviour in the database is a very serious occurrence with lasting implications for the Child and his family for which the parents are entitled to a detailed explanation.

39The Board finds that the Society has a responsibility to provide contextual and understandable explanations to the Applicants regarding the codes in the Provincial Database which relates to their son. They require clear explanations as to the meaning of the codes because they believe that the codes have lifelong negative implications for their son.

6: The inclusion of their names on the Provincial Database

40The Applicants voiced their concern that their names are in the Provincial Database and this would not allow them to foster children in the future. The Society’s position was that the Child Protection Standards in Ontario mandates that;

“Prior to the conclusion of an investigation, persons who were the subjects of a protection investigation are informed that information regarding the investigation will be placed on the provincial database”.

The information in the database is used by Children’s Aid employees for the purpose of ensuring children’s safety during child protection investigations.

41The Applicants complained that the Society’s Placement Supervisor reported that the Society would not place any children in their home because of the verified conduct of their son while he was at school and further no other society would utilize the home because of the notations in the Provincial Database.

42The Applicants asked the Society if the files could be sealed but that request was denied and the Applicants were told that sealing the files would not help them in this situation. The Applicants testified that the incidents did not occur in their home and there is a safety plan in place to keep their home safe for children. They further testified that the Society did not make any negative findings with regards to their home and in fact the Society had supported the home for foster placements. Considering the circumstances of the incidents involving their son, they do not understand the need to be added to the Database.

43The Applicants were assured by the Society that their home had not contributed to the situation and its concerns were all based on their son’s behaviour in the community. The Society assured the Applicants that it found that their home was safe for children and yet based on the information provided by the Society in the Provincial Database the Applicants effectively would not be able to foster children in the future. The Applicants were justifiably confused and sought clarification.

44The Applicants were not heard by the Society regarding the process and the outcome of the investigation involving their son and the verification of the allegations against him was not explained to them in sufficient detail to enable them to understand why and how the Society made its decision to include them in the database. The letter received by the Applicants did not provide any details or explanations and does not amount to meaningful reasons for parents.

45The Board finds that the Applicants were not given reasons for the inclusion of their names in the Provincial Database.

7: Notifying the Applicants to advise their son’s new school of the Society’s finding

46The mother testified that the Society recommended risk assessment and counselling for the child and they were also advised to notify the principal of their son’s new school regarding the investigation.

47The Applicants believe that it would be wrong to advise the child’s new school of these issues as their son’s self-esteem and relationships will suffer. The Board will not make a finding on this issue as the Applicants were not bound to follow the advice of the Society.

CONCLUSION

48The Board finds the Applicants were not heard or provided with reasons by the Society, as required under the Act regarding:

• The Society’s decision to interview the son alone

• The lack of notification of the September 3 outcome meeting

• The outcome of the investigation

• The labeling of their son as a sexual predator

• The inclusion of their names on the Provincial Database

Board decision

49The Board has specific remedial powers under the Act. These are:

Board decision

68.1 (7) After reviewing the complaint, the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint; or

(f) make such other order as may be prescribed. 2006, c. 5, s. 26.

50The Board orders the Society to comply with the Act by hearing the Applicants. The Board orders the Society to meet with the Applicants to get their input and perspective on all of the allegations verified in the December 3 and 13, 2013 correspondences.

51To hear the Applicants, would also include listening to their perspective on the investigation process and its findings and taking into account the family dynamics, the propriety of placing them on the Provincial Database, the concerns of the parents and reviewing the process it used to effectively close the Applicants home as a foster home.

52The Society shall meet with the Applicants to address all of the above, on or before March 26, 2014. The Society will also provide a written report for the Applicants explaining the results of the meetings and its findings. The Board recommends that a new Intake Worker be assigned to conduct the meetings ordered by the Board.

53The Board will stay seized of its order for implementation purposes.

CONFIDENTIALITY ORDER

54Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings.