LR v. Children’s Aid Society of Toronto, 2019 CFSRB 14

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LR

Applicant

-and-

Children’s Aid Society of Toronto

Respondent

DECISION

Adjudicator: Gabrielle Pop-Lazic

Date: March 21, 2019

Citation: 2019 CFSRB 14

Indexed as: LR v Children’s Aid Society of Toronto (CYFSA s.120)

APPEARANCES

Allison P. Williams, LR, Applicant Counsel

Justine Sherman, Children’s Aid Society of Toronto, Respondent Counsel

Introduction

1This is an Application brought pursuant to sections 120(4)4 and 120(4)5 of the Child, Youth and Family Services Act, 2017, SO 2017, c. 14, Sched. 1 (CYFSA), alleging the Children's Aid Society of Toronto (the "Society") refused to proceed with the applicant’s complaint, the applicant was not provided with an opportunity to be heard when decisions affecting her interests were made or when she raised concerns about services she was receiving, and the Society failed to provide her with reasons for decisions which affected her interests.

2A pre-hearing in this matter was held on September 24, 2018 in which it was determined that a hearing would be held with respect to the following issues:

a. The Society denied the Applicant’s request to have her file transferred to Native Child and Family Services (NCFS) and failed to provide culturally appropriate or responsive support services to her and her son;

b. The Society was dismissive of reports from various sources about sexual abuse of the Applicant’s son by his biological father, took no action to protect the child, and concluded the alleges abuse was “unverified”;

c. The Society failed to investigate the Applicant’s concerns that people were making malicious allegation about her and her child and did not seek context or other relevant information from the Applicant;

d. The Society dismissed allegations about a restraining / no access order against the father with his children from a prior relationship as evidence of a pattern of behaviour; and

e. The Society failed to provide her with reasons for their conclusions that the sexual abuse allegations were unverified or unsubstantiated.

3For ease of reference issues b and e above will be addressed together in these reasons.

4A hearing was held on February 19, 2019. I heard evidence from the applicant and from NL, the child’s godmother, on behalf of the applicant, as well as Moshan Attique, the first family service worker, his supervisor, Dorian King, and Marcia Duncan, the second family service worker. For the reasons that follow the Application is dismissed.

the law

5The relevant provisions of the CYFSA are as follows:

15 (1) Service providers shall respect the rights of children and young persons as set out in this Act.

(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.

120 (1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may,

(a) decide not to make the complaint to the society under section 119 and make the complaint directly to the Board under this section; or

(b) where the person first makes the complaint to the society under section 119, submit the complaint to the Board before the society’s complaint review procedure is completed.

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

4. Allegations that the society has failed to comply with subsection 15 (2).

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

(…)(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

6The complaints, which are the subject matter of this Application, arose in the context of an investigation opened by the Society following a referral from the Child and Youth Advocacy Center which advised that the Applicant’s child was ready to disclose 4 years of sexual abuse at the hands of his father.

7The Society commenced an investigation and ultimately found the allegations to be unverified.

Analysis

8In PO v. Family and Children’s Services Niagara, 2012 CFSRB 38 at para. 13-14, the CFSRB articulated the purpose underlying what was then section 68.1(4) and (5) of the Child and Family Services Act 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 facilitate through genuine communication giving applicants 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.

9Similarly, in JG v. Windsor-Essex Children’s Aid Society, 2012 CFSRB 25 at para. 13, the CFSRB considered what “the right to reasons” means stating:

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.

10As section 68.1(4) has been continued under section 120(4) of the CYFSA with no substantive changes, the reasoning applied by the CFSRB in PO and JG applies equally to decisions made under section 120(4) of the new Act.

Issue 1: Did the Society deny the Applicant’s request to have her file transferred to Native Child and Family Services (NCFS) and fail to provide culturally appropriate or responsive support services to her and her son?

11The Applicant testified that shortly after the opening of the Society’s investigation, she requested that her file be transferred to NCFS as she felt that the workers there would be more culturally sensitive to her and her child’s needs.

12The Applicant testified that she had a number of conversations with the first family services worker and was variously told that the inter-agency request was denied; that it could not be made due to the Applicant not having Canadian indigenous roots; and that it could not be made because of the stage of the investigative process.

13The first family services worker testified that he spoke with the Applicant on a number of occasions regarding her request for a transfer to NCFS. The first conversation took place on March 2, 2018 prior to the commencement of the police investigation into the sexual abuse allegations. The Applicant had requested that a worker from NCFS be present to provide support for her child during the police interview. At that time, the first family services worker explained that NCFS had declined to participate and that they required further information regarding her indigenous heritage.

14The first family services worker contacted the Applicant again on March 15, 2018 advising her again that she needed to provide information regarding her heritage if she wished to have NCFS involved.

15On March 27, 2017 the first family services worker met with the Applicant and advised her that based on the information that she provided regarding her child’s heritage, she did not qualify for NCFS services.

16On May 3, 2018 the first family services worker and his supervisor met with the Applicant. At the meeting the issue of the transfer to NCFS was again discussed with the Applicant as was her request for a worker of native heritage. Following the meeting the supervisor sent a letter to the Applicant which states:

Regarding your request to transfer your file, you were told that Native CFS is unable to provide services to you based on the information shared about your family’s heritage. As per your request for the names of Native CFS staff consulted; on March 28, 2018 Mr. Attique spoke with Lesley Gillings, Intake Department and on March 3, 2018 I spoke with John Daniel, Supervisor.

17Based on the this information, I find the Society has met its obligation under s. 15(2) of the CYFSA, and, subsequent to the filing of this Application has provided the Applicant with written reasons for that decision. As such this aspect of the Application is dismissed.

Issue 2: Was the Society dismissive of reports from various sources about sexual abuse of the Applicant’s son by his biological father and did they fail to provide reasons for finding that the allegations of abuse were unverified?

18There was no evidence to support these allegations. The evidence showed that following the disclosures made by the child, the Society arranged for a joint investigation with Toronto Police Services in accordance with their policy. The first interview with the police was held on March 2, 2018 less than a week after the opening of the file.

19On cross-examination the Applicant testified that the first family services worker explained to her on March 27, 2018 that the Society’s investigation ran parallel with the police investigation and that the conclusion would be based on the results of the police investigation.

20This issue was also discussed at the meeting on May 3, 2018 where details regarding the joint police investigation and the Society’s verification process were shared with the applicant and later confirmed in writing in the May 10 letter sent to the Applicant following this meeting.

21Based on this information, the CFSRB finds, the Society has met its obligation under s. 15(2) of the CYFSA. As such this aspect of the Application is dismissed.

Issue 3: Did the Society fail to investigate the Applicant’s concerns that people were making malicious allegation about her and her child and did not seek context or other relevant information from the Applicant?

22On April 26, 2018 the first family services worker met with the Applicant. During that meeting, he explained that it was the Society’s job to follow up on all information that is received pertaining to a child especially with a family that the Society is working with.

23In her evidence the applicant testified that she appreciated that every allegation needs to be taken seriously by the Society regardless of its source. She went on to testify that what she requested was for the Society to investigate the source of the allegations and to follow up on what she characterized as a malicious call.

24The functions of a children’s aid society are set out in section 35 of the CYFSA as follows:

a. investigate allegations or evidence that children may be in need of protection;

b. protect children where necessary;

c. provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children; provide care for children assigned or committed to its care;

d. supervise children assigned to its supervision;

e. place children for adoption under Part VIII of the Act; and

f. perform an other duties given to it by this Act or the regulations or any other Act.

25Nowhere in the CYFSA is the society required to investigate the source of the allegations or referrals that it receives to determine whether they are malicious or made in good faith. To require it to do so would take valuable resources away from the society’s mandate and would not advance the paramount purpose of the CYFSA which is to promote the best interests, protection and well-being of children.

26For these reasons, I find that the Society heard the Applicant’s concerns regarding these calls and provided her with an explanation for why it followed up on the information received. This aspect of the Application is dismissed.

Issue 4: Did the Society dismiss allegations about a restraining / no access order against the father with his children from a prior relationship as evidence of a pattern of behaviour?

27The Applicant testified that sometime in March 2018, following the initial police interview she advised the first family services worker as well as various other unidentified people of the existence of a restraining order in Alberta. She alleges this information was not considered or addressed in the investigation that resulted in the sexual abuse allegations being unverified.

28The first family services worker testified that part of the process when conducting an investigation is to look at the picture in a holistic manner. He went on to testify that the information regarding the restraining order was considered during the investigation. The Applicant acknowledged in her evidence that on March 27, 2018 the joint nature of the Society and Police investigation was explained to her by the first family services worker. The Applicant, also filed, as part of her evidence an email dated April 16, 2018 from the Detective Constable who conducted the police investigation, setting out the steps that were taken in her investigation.

29The Applicant met with the first family services worker and his supervisor on May 3, 2018. At that meeting, the details of the joint police investigation and the Society’s verification process were again discussed.

30While the Applicant may not be satisfied with the outcome of the investigation, the CFSRB does not have the jurisdiction to determine whether the steps taken by the Society in the conduct of its investigation were reasonable or appropriate. The only issue which I can consider is whether the Society heard the Applicant’s concerns and provided her with information on the factors that were taken into account so that she is able to understand why and how the decision was made. On the evidence before me I find that the Society has met its obligation and therefore, this aspect of the Application is dismissed.

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.