WM v. Catholic Children's Aid Society of Toronto, 2018 CFSRB 53

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

WM

Applicant

-and-

Catholic Children’s Aid Society of Toronto

Respondent

DECISION

Adjudicator: Michele O’Connor Date: November 2, 2018 File Number: CA18-0117

Citation: 2018 CFSRB 53

Indexed as: WM v Catholic Children's Aid Society of Toronto (s.120 CYFSA)

APPEARANCES

WM, Applicant )

Self-represented

Catholic Children’s Aid Society of Toronto, ) Respondent )

Rachel Buhler, Counsel

INTRODUCTION

1This is an Application made under section 120(4)4 and 5 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1, proclaimed in force April 30, 2018 (the Act).

2The Applicant alleges that the Catholic Children’s Aid Society of Toronto (“the Society”) did not hear or act on her concerns and failed to give her reasons for decisions it made about the following issues:

1. the Society refused to proceed with a complaint made by the Applicant;

2. the Society failed to respond to the Applicant’s complaint within the required time; and

3. the Society has not heard the Applicant’s service concerns or heard her when decisions were made and has not provided her with reasons for decisions that affected her interests regarding the 2018 protection investigation involving her daughter.

3The Child and Family Services Review Board (“CFSRB”) must decide whether the Society met its obligations to hear the Applicant and provide the Applicant with reasons for decisions concerning the issues she has raised.

4I heard from the Applicant and from the Child Protection Supervisor-Quality Assurance on behalf of the Society. Documentary evidence was filed by both parties.

5For the following reasons the CFSRB finds that:

a) the Society refused to proceed with a complaint made by the Applicant;

b) the Society failed to respond to the Applicant’s complaint within the required time; and

c) the Society did not hear the Applicant’s service concerns, nor did it provide her with satisfactory reasons for decisions that affected her interests in the 2018 protection investigation regarding her daughter.

THE LAW

6The relevant provisions of the Act are:

s.15(2) Service providers shall ensure that children and young persons and their parents have an opportunity 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;

s.120(4) The following matters may be reviewed by the Board under this section:

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 119(1) as required under subsection 119(2);

2. Allegations that the society has failed to respond to the complainant’s complaint within the time frame required by regulation;

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints;

4. Allegations that the society has failed to comply with section 15(2); and

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

s.120(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.

BACKGROUND

7The Applicant is the mother of MV who is 12 years old. MV’s father is CV. The Applicant and CV are divorced. They share custody of MV and have “equal shared access” with her.

8CV is married to NS. NS has one child from a prior relationship, GS, who is 10. CV and NS have a child together, AV, who is 6. MV lives with her father and his family approximately one half of the time.

9In 2015 a society, not the Respondent, completed a protection investigation into the home of CV and NS over an alleged incident of violence by NS against a child in the home. The Applicant learned of it from her daughter after she had been interviewed by a social worker at CV’s home. Her attempts to obtain information from the investigating agency were frustrated. She was told only what her daughter had disclosed and that, had her daughter not been hit by NS, the Society would have told her nothing. When the investigation was closed the worker called to advise her of this fact, reportedly because NS had asked him to do so. Absent the permission of the alleged abuser, the Applicant would not have known whether the file was open or closed or whether there was ongoing risk to her daughter.

10In January of 2018 an incident of domestic violence between CV and NS led to a second protection investigation, this time by the Society. MV was in her father’s care at the time. CV brought MV to the Applicant immediately afterwards while he attended the police station to report the assault. He subsequently told the Applicant that MV would be interviewed by the Society.

11The Applicant contacted the Society to request that she be advised when and where her daughter would be interviewed, to obtain information as to her daughter’s wellbeing, and to share information she believed may be relevant to the investigation.

12The Applicant’s complaint to CFSRB is personal but she also raises public policy concerns. She complains that the Society refused to proceed with her complaint, failed to respond to her within the required time, failed to hear her and did not give her reasons for decisions they made which affected her interests. She also complains that the Society’s policies and practices governing its response to inquiries by a non-involved custodial parent about a protection investigation into the family of the other parent are faulty and need to be revised.

PRELIMINARY ISSUES

13The Applicant raised 2 issues in advance of the hearing: a) that this hearing not be subject to a Confidentiality Order; and b) that the Protection Investigation Report regarding the CV and his family be disclosed to the Adjudicator before the hearing to corroborate the Applicant’s submissions on whether she was heard. At the beginning of the Hearing the Applicant also requested an Order that the CFSRB remain seized in this case.

14The CFSRB heard submissions from the parties on each of these issues.

(a) Waiver of Confidentiality

15The Applicant submitted that the question of whether custodial parents should have the right to be heard during a child protection investigation and provided information about an investigation is one of public interest. She wants to be able to share her experience and the arguments/materials in this hearing with other stakeholders (Office of the Child Advocate, Ontario Association of Children’s Aid Societies, Ministry of the Attorney General, and Child and Youth organizations) to sensitize the sector to the rights of custodial parents and to raise awareness to the problems with Society practices in protection investigations and disclosure to the non-involved custodial parent.

16In her view, the intent of Confidentiality Orders in these proceedings is to “protect the identity of the child and the Applicant”. She has no concerns if her identity is revealed and would agree to anonymize the names of the children and other persons. She understands that the purpose of the Confidentiality Order is to protect the identity of the people who are subject of the investigation, but she believes there is a greater public interest in her being able to talk.

17The Society submitted that the privacy rights of third parties must be respected. It does not object to the Applicant releasing or discussing the redacted public version of the Decision.

18Neither party would agree to adjourn the hearing to serve the affected third parties with Notice of the hearing and invite their submissions on the issue.

19The Applicant sought to waive confidentiality of all aspects of this hearing including the process, documents, evidence, witnesses and the anonymized decision so she would be able to share her personal experience.

20The Act and Rules of the CFSRB are statutory requirements that information pertaining to a child is not to be released, these hearings are to be held in private, all CFSRB decisions are subject to a confidentiality order and may also contain information subject to s.87(4) of the Act. The CFSRB produces a redacted version of its decisions. No one shall circulate, reproduce, communicate, or publish any information in or obtained from an unredacted decision of the CFSRB without first obtaining an order of the CFRSB or court.

21Section 87(4) reads as follows:

A hearing shall be held in the absence of the public … unless the court orders that the hearing be held in public after considering,

(a) The wishes and interests of the parties; and

(b) Whether the presence of the public would cause emotional harm to a child who is a witness or a participant in the hearing or is the subject of the proceeding.

22The parties to this Application are not the only ones who would be affected by an order waiving the confidentiality Rules. The privacy interests of the non-parties must be considered as well. Both parties rejected giving notice to CV and NS, both of whom were subjects of the Society protection investigation. On weighing the competing interests and the Applicant’s stated purposes for wanting to remove confidentiality in these proceedings, I find that her purposes can be achieved with the redacted decision.

23The Confidentiality Order made at the commencement of the hearing continues to apply subject only to the specific terms of the Order below.

(b) Disclosure of the Protection Investigation Report (PIR)

24The Applicant requested a copy of the PIR from the Society. It was refused. She asked her ex-husband for a copy and he has not provided it. She believes that the contents of the report will prove that she was not “heard” in the investigation.

25The Society submits that its refusal to disclose the contents and outcome of the investigation is central to this complaint and that third-party privacy considerations outweigh the Applicant’s interest in having the report.

26The release of the PRI in advance of the hearing to the Adjudicator to “corroborate” the Applicant’s assertion that she was not “heard” is a complicated matter. The Pre-hearing disclosure order was that all “arguably relevant” materials be disclosed. The PRI was specifically excluded from the Disclosure Order. The Society objected to its release because it is the “crux” of the Applicant’s complaint to CFSRB. The protection investigation involved her daughter, her ex-husband and his wife, and their other 2 children. MV was at her father’s home when the incident occurred which led to the protection investigation. The Applicant was not part of the investigation.

27While there is no question that it may be relevant, third-party privacy considerations must be considered in determining whether release of the PRI is necessary to resolve the Applicant’s complaint.

28Access to one’s own records is a generally established right. The CFSRB has jurisdiction to order any document disclosed as part of full disclosure between the parties. However, access to someone else’s records is not permitted without a consideration of their rights to privacy which would involve notice to the affected parties and a right to be heard.

29As an alternative to granting the Applicant’s request, CFSRB requested a copy of the PIR redacted except for direct reference to the Applicant, information received from the Applicant and how information from the Applicant was considered and factored into the Society's conclusions. The copy provided by the Society was fully redacted. This does not prove the Applicant’s assertion that she was not “heard”. It simply confirms that there is no reference to her or the information she provided in the PRI.

CFSRB to remain seized

30The Applicant submitted that it was important for the CFSRB to remain seized of the case after the hearing to ensure compliance with any order.

31The Society responded that there is usually a timeline for compliance with any order and it had no objection to a timeline in this case.

32No further ruling is required. If the CFSRB makes an order there will be a timeline for compliance where appropriate and the CFSRB will remain seized for that purpose.

ANALYSIS

33In P.O. v Family and Children’s Services Niagara, 2012 CFSRB 33 at paragraphs 13-14, the CFSRB described the purpose of s.68.1(4) and (5) (now s.120(4) 4 and 5) 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.

34In JG v Windsor Essex Children’s Aid Society, 2012 CFSRB 25, the CFSRB held that:

The right to reasons is based on the principle that sufficient information, both factual and contextual, is required to understand decisions that were made. There is a link between the right to be heard and the right to reasons because having information helps people understand and this helps them participate meaningfully in discussions and ultimately helps in achieving acceptance of the decision.

Issues 1 and 2 – The Society’s response to the Applicant’s complaint

35On learning from CV in February of 2018 that their daughter was to be interviewed by a Society worker as part of a protection investigation into the domestic violence incident, the Applicant contacted to Society to determine details of the interview process, the investigation, and how her daughter was involved.

36Contextually, the Applicant’s concerns were heightened because of the 2015 protection investigation where the Applicant was excluded from that process despite the fact that her daughter was a subject in that investigation.

37The Applicant testified that she telephoned the Society on February 21, 2018 and received a call back from the assigned Case Worker on February 22, 2018. She wanted to know when and where her daughter would be interviewed. The Worker told her that children are “typically” interviewed at home, and that it would “likely” take place within the next week. CV told the Applicant that he had given permission to the Case Worker to give this limited information to her.

38The Applicant subsequently submitted information by email to the Case Worker about incidents between 2015 and 2018 which she felt may be useful to the investigation. She and the Case Worker had 2 short conversations and one email exchange. The Case Worker asked no questions and shared no information with her. When the protection investigation concluded the Applicant requested a copy of the report from CV. He would not give her a copy but told her there was no mention of her or the information she had provided in the PIR.

39A Pre-Hearing Direction required both parties to disclose “all arguably relevant” materials in advance of the hearing. The Applicant complained to CFSRB that some items in her disclosure request to the Society may be missing, particularly notes regarding internal communications between worker and supervisor or a superior. In the Disclosure Motion the Society submitted that all contact notes referencing the Applicant had been provided and that all communication about this matter would be found in the

contact notes (including communication between a worker and supervisor), that its database had been searched and there was nothing further.

40The Society's “Contact Notes” were filed and confirm the Applicant’s account of the Society’s limited engagement with her during the investigation. Notes made by the Child Protection Supervisor, which she apparently used to refresh her memory for this hearing, were not disclosed and no privilege was claimed.

41The Applicant emailed her first written complaint to the Society (and to the Society involved in the 2015 protection investigation) using their respective online “Contact Us” complaint forms on February 22, 2018. On March 12, 2018 she emailed the Respondent again using this online complaint form. She did not receive a response to either of those complaints.

42As part of her disclosure request the Applicant asked for copies of these 2 complaints. The Society was unable to locate them. The Child Protection Supervisor testified that the employees who would have been the recipients of those complaints were no longer with the Society and it was not able to locate copies through an IT search of their system.

43The Applicant filed a copy of the identical complaint she sent on the same date, February 22, 2018, to the Society involved in the 2015 investigation. She also filed its reply dated February 23, 2018. The Applicant’s on-line complaint begins with the following statement:

This is a complaint. I am sending the same complaint to both Toronto Children’s Aid and (the other Society). I would like to see a policy change as a result of this complaint.

She then outlines the facts underpinning her complaint to both agencies.

44The Applicant sent this same complaint to the Society again on March 12, 2018.

45On April 23, 2018 the Applicant telephoned the Society. She spoke briefly with the Child Protection Supervisor. The Child Protection Supervisor testified that her role at the Society is "the person who facilitates all complaints to (the Society) informal,

formal, IPRC”. She directed the Applicant to the Society website and a different email address. The Applicant filed her third complaint that day by email. It begins:

I sent this complaint through the online complaint form on February 22 and again on March 12. I received no response either time. I hope you can find out why. This is a complaint … etc.

46The Society website materials which the Applicant filed and relied on at the hearing show the Society’s “Complaints and Resolutions” processes which include and explain “Informal Process”, “Formal Complaint Process”, “Internal Complaint Review Panel (ICRP)”, and “the Child and Family Services Review Board (CFSRB)”. The material clearly states that the Society will respond to a formal complaint in writing within ten (10) days, and that the formal complaint response would advise whether the complaint could be reviewed by the Internal Complaint Review Procedure.

47Part of the Applicant’s complaint is that she was never advised by the Society of the complaint options, specifically she was never told whether her complaint could have been reviewed by the ICRP.

48On May 7, 2018, the Child Protection Supervisor responded by email to the Applicant advising that she had spoken with Society senior counsel and would share information in a follow up telephone call. They spoke on May 9, 2018.

49The Applicant testified that on May 9, 2018, the Child Protection Supervisor told her it was her child’s father’s responsibility to share information about the investigation with her because her daughter was in his care at the time of the incident which triggered the protection investigation. The Society would only inform the other parent if it felt the child was in immediate danger and only then, in its discretion. The Child Protection Supervisor said the reason for this policy is that the Society is subject to the Freedom of Information and Protection of Privacy Act (FIPPA).

50The Applicant’s version of events was essentially confirmed in the Child Protection Supervisor's testimony except that she recalled mentioning FIPPA and other pieces of legislation governing privacy issues. There was no mention of the possible ICRP during this conversation or at any other time.

51After speaking with the Child Protection Supervisor the Applicant contacted the Office of the Information and Privacy Commissioner of Ontario (IPC) because she understood that FIPPA was the reason the information could not be shared with her. The IPC's response of the same date, May 9, 2018, was filed and confirmed that the IPC does not have jurisdiction over children’s aid societies until January 1, 2020.

52When questioned by the Applicant about how she had such a clear recollection of their discussion the Child Protection Supervisor responded that she had kept personal “administrative” notes of their discussion. The Applicant understandably questioned why these notes were not disclosed in response to her disclosure request and the Case Management Direction that all “arguably relevant” materials were to be disclosed.

53The Society’s online materials specifically establish that, in its response, it would advise whether the complaint could proceed to an ICRP. The Society submitted that the two original complaints were not received and may not have been sent, and that the reason it did not proceed with an ICRP was because the Applicant filed her CFSRB complaint on May 30, 2018.

54Despite the Society not being able to locate a copy of her complaint, I accept as a fact that the applicant submitted her complaint to the Society on February 22, 2018, again on March 12, 2018, and a third time on April 23, 2018.

55I find the Society refused to proceed with the Applicant’s complaint and it failed to respond to her complaint within 10 days as required. The Society’s online materials specifically state that, in its response, it would advise whether the complaint could proceed to an ICRP. There was no evidence of any follow up conversation by the Society, and the Applicant specifically testified that she was never advised of the option of an ICRP or any other options.

56The conclusion that the Society failed to respond to the Applicant’s complaint within the required time, and that it refused to proceed with the Applicant’s complaint is inescapable based on the evidence.

Issue 3 – Was the Applicant heard and was she given reasons for decisions which affected her interests regarding the protection investigation involving her daughter

57The Applicant’s calls and emails with the Case Worker were brief. It is clear from the evidence that there was no meaningful attempt by the Case Worker to engage with her or permit her to express her concerns and views, or to provide her with any specific information regarding the investigation.

58The Applicant testified that the Case Worker did not ask her any questions and there was no discussion with her about the information she had submitted by email. Rather, she received only a terse response essentially confirming that the information had been received. Contact notes filed confirm that the worker contacted her with CV’s permission. Otherwise there would have been no response.

59The Applicant asserts that as a custodial parent, she is entitled to participate and to receive information during the Protection investigation because “MV’s interests are my interests”. She relies on sections of the Children’s Law Reform Act and the Divorce Act to support her contention that she has a right to make enquiries and be given information regarding the protection investigation. The absence of any reference to her in the disclosure documents from the Society or in the PRI support her conclusion that her information and her rights as MV’s mother were not discussed or considered by the Society. She says that she reached out to the Society when she learned of the investigation and was not heard or engaged in any way by the Case Worker.

60The Applicant testified that these decisions by the Society to refuse her information or participation impacted her in several ways. She was not given an opportunity to explain or participate or share her concerns apart from her written complaint and the brief conversation with the Child Protection Supervisor outlined above. There was no attempt by the Society to engage with her, only to pass along the information from senior counsel that her remedy was to get the information she sought from her ex-husband.

61Examples of the impact of the Society’s refusal to share information on the Applicant are:

• "My daughter is witness to violence and the Society is collecting Information as to whether my daughter is safe but that information is not shared with me."

• "I need the information … to fulfill my role as parent and to ensure the safety of my child."

• "The Society was allowed to determine whether that household was safe for my daughter but not being aware of it I did not know whether I should have requested changes to the existing custody/access order."

• "My daughter knew something bad had happened and I was not aware of it which could lead to divided loyalties and conflict. This is not fair to put a child in this position."

62It is troubling that a custodial parent whose child is involved in a protection investigation at the home of his or her other parent would be excluded from that process and not entitled to any information about it without the permission of the involved (possibly abusive) parents.

63The issue in these proceedings is whether the Applicant’s “service” concerns were heard, not whether or how the Society used information she provided to them in the protection investigation involving others.

64The Society asked the Applicant no questions about the impact on her or her relationship with her daughter of being excluded from the process. There was no offer to meet with her, nor was she offered the opportunity to bring her personal experience and concerns about the Society’s disclosure policies in circumstances such as these to an IPRC. The Child Protection Supervisor gave the Applicant the legal feedback she had received from her Director and counsel. That was the extent of the Society’s direct engagement with her.

65The Society submitted that it not only heard the Applicant but, as proof of that fact, outlined steps to change its policies in these situations. The Society is cooperating with a “Systemic Investigation” by the Ontario Child Advocate into disclosure of information policies for child protection investigations. It has developed a “Position Statement” regarding “Notification” of an investigation to the biological parent and/or caregiver who is not involved in the investigation. Its policies on Disclosure of Records will be updated to coincide with the enactment of Part X of the Act in 2020. Internally, the Society has redirected the Contact Us emails to the Society Communications Department mailbox instead of to individual emails, and the “functionality” of the Complaints process will be improved to provide a receipt to the complainant when a complaint is filed and follow up within 10 days.

66However, in response to the question “If the Applicant were to make a complaint today would her complaint be treated any differently than this was”. The answer was no.

67The Society now acknowledges an obligation to “notify” both parents in these circumstances that there is an investigation and that the child will be interviewed. It will be up to the separated/divorced parents to decide which parent will be present at the interview with the child. Third party privacy will still be protected and the non-involved parent will not be entitled to the PRI unless the involved parties consent to its release.

68From the evidence I conclude that the Applicant’s service concerns were not heard, nor was she given satisfactory reasons for the Society’s decision to proceed as it did. The Society made no meaningful attempts to engage with the Applicant or permit her to express her concerns and views. The response to her complaint did not provide her with sufficient information to understand why she was being excluded from the process when she so clearly has legal rights to information pertaining to her daughter in most other circumstances.

69There is a link between the right to be heard and the right to reasons because having information helps people understand and this helps them participate meaningfully in discussions and ultimately helps in achieving acceptance of the decision. See JG v Windsor Essex Children’s Aid Society, 2012 CFSRB 25.

70The Applicant proposed a number of remedies to address her complaint, some of which are personal, others are more in the nature of public policy development. CFSRB jurisdiction is confined to the statutory remedies set out in s.120(7). I agree with the Society that the policy remedies are more appropriately addressed in a different forum, specifically in the Systemic Investigation currently underway by the Ontario Child Advocate.

DECISION

71Regarding Issues 1 and 2, the CFSRB finds that the Society did not respond to the Applicant’s complaint in a timely manner and refused to proceed with her complaint.

72Regarding issue 3, the CFSRB finds that the Society made no meaningful attempts to engage with the Applicant or permit her to express her concerns and views. There was no opportunity given for her service concerns to be heard and the sole reason given for its limited response to her complaint was the privacy concerns of others with no attempt to help her understand why, on balance, the privacy of others mattered more than her anxiety concerning her daughter’s well-being.

73The Applicant presented her complaint in an organized, efficient and respectful manner. She was most concerned about the limited information available to her in the Society’s protection investigation regarding her daughter, but she also has suggestions for change with broader application to the complaints process and disclosure issues. She deserves an opportunity to be heard.

ORDER

74The CFSRB orders the Society to provide to the Applicant within 30 days of the date of this Decision:

1. An invitation to attend a Society IPRC panel at a time to be arranged in consultation with the Applicant for a full discussion of the Applicant’s personal experience in the protection investigation involving her daughter, her ex-husband and his wife; an opportunity to share her suggestions for improvements to the Society’s complaints process; an opportunity to be given reasons for the Society’s limited response both to her complaint and to her attempts to give and receive information in the protection investigation.

2. A letter acknowledging the Society’s failure to respond to her complaints and the changes the Society has or will make to address the identified shortcomings in that process;

3. The Confidentiality Order below is specifically modified to permit the Applicant to share this decision and her experience with the Society with the Ontario Child Advocate investigation if requested.

CONFIDENTIALITY ORDER

75Except as otherwise provided in the Order above, pursuant 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.