PT v Windsor Essex Children’s Aid Society, 2019 CFSRB 52

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

PT Applicant

-and-

Windsor Essex Children’s Aid Society Respondent

DECISION

Adjudicator: Michele O’Connor and Daniel McSweeney Date: September 05, 2019 Citation: 2019 CFSRB 52 Indexed As: PT v Windsor Essex Children’s Aid Society (CYFSA s.120)

APPEARANCES

PT, Applicant Self-represented

Mr. Ronald Burnett, Windsor Essex Children’s Aid Society, Respondent Counsel

Introduction

1PT (“the Applicant”) filed an application on March 15, 2019 under sections 119(5) and 120(4) of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1, (the Act) against the Windsor Essex Children’s Aid Society (“the Respondent”).

2A Pre-Hearing was held on April 25, 2019, in which it was determined that there would be a hearing with respect to the following issues:

1. The Applicant’s concerns about a letter sent by the Society to community agencies about him posing a risk to children. He requested a retraction of the letter and an apology from the Society;
2. The Applicant questions the investigation process which led to him being deemed a threat to children. He believes the investigation was incomplete as he says neither he, his son, nor his grandson were initially interviewed regarding the allegations;
3. The Applicant is dissatisfied with the answers provided at the ICRP meeting, specifically the following points contained in the follow-up letter of September 27, 2018: a. Clarification as to whether the correspondence with the Applicant’s son played a role in the decision-making process and, if so, what role did this play; b. what is meant by references to “risk of sexual harm in the past”? c. an explanation of what circumstances exist regarding the past abuse allegations and what indicates these circumstances have not changed?

3The Child and Family Services Review Board (“CFSRB”) must decide whether the Society met its obligations to provide the Applicant with reasons for the 2 decisions raised in his complaint, specifically:

• The verification decision; and
• The decision to send letters to community agencies.

4The hearing was held on July 25 and 26, 2019. On behalf of the Applicant we heard evidence from the Applicant, his current spouse JR, his spouse’s daughter RR, a friend CC, and a friend and Board member of one of the notified community organizations, CV. On behalf of the Society, we heard evidence from the Intake Worker LK, Director DD, and Director KB. Documentary evidence was filed by both parties, and the Society filed further written submissions on August 6, 2019 regarding CFSRB jurisdiction.

5For the following reasons the CFSRB finds that the Society did not provide the Applicant with satisfactory reasons for the verification decision or for the decision to communicate with the volunteer organizations with which the Applicant was affiliated.

Preliminary Matters – Inadequate Disclosure

6In all cases one of the questions before the Board is whether a society has provided sufficient file disclosure to enable the applicant to participate in the Board’s process in a meaningful way. This means an applicant must be provided with sufficient information to enable them to make out the complaint and to respond to the case put forward by the children’s aid society. See JS v. Windsor Essex Children’s Aid Society 2017 CFSRB 33, paragraph 19.

7Notwithstanding the Pre-Hearing Direction that parties were to disclose all arguably relevant material to each other, the Society provided minimal disclosure to the Applicant. At the outset of the hearing the Society was ordered to immediately provide the Applicant with copies of his file, redacted as necessary. JR and RR both consented orally to disclosure of file documents from the 2014 protection investigation pertaining to them and the Applicant.

THE LAW

8The relevant provisions of the Child, Youth and Family Services Act (“the Act”) in this matter are:

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

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 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; or

(e) dismiss the complaint.

BACKGROUND

9Windsor Police Services (WPS) made a referral to the Society in late August of 2014. The Applicant had been arrested and was charged with sexual interference with his former step-granddaughter SD. She alleged an incident of sexual abuse in approximately 1995 when she was 5 or 6 years old. WPS notified the Society because the Applicant was reported to be in regular contact with a young child.

10The identified child in the Society’s investigation was MR who is the granddaughter of the Applicant’s spouse, JR. The Society interviewed JR, her daughter RR (who is the mother of the identified child), and the child MR. The worker spoke briefly by telephone with the Applicant to confirm restrictions on his contact with MR.

11Following its investigation, the Society “verified” risk of sexual harm based on the outstanding charges against the Applicant and the pending trial. It closed its file at Intake on November 26, 2014.

12On March 23, 2017 the Applicant was found not guilty following a trial on the charge of sexual interference.

13On March 28, 2017, SD called the Society to report on the trial outcome and that she had information from the trial that the Applicant was actively involved with youth in the community.

14In April of 2018, the Society decided to send the letter to 5 community organizations that the Applicant was or may have been involved with advising that “As a child protection agency we have concerns should this individual be having unsupervised contact with children.”

15An Internal Complaints Review Procedure (“ICRP”) meeting was held at the Society on September 7, 2018. The Society sent the Applicant a follow-up letter on September 27, 2018.

ANALYSIS

16In 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.

Issue 1 – the verification decision of risk to step-granddaughter in 2014

17The Applicant asserts that the Society investigation in 2014 was fundamentally flawed because it did not include an interview with him (the alleged perpetrator), nor did the Society speak with his son and grandson. His contact with the Investigating worker consisted of a single brief telephone call in which he denied the allegation. He did not recall specifically discussing a “safety plan” but acknowledged he had agreed to not be in a caregiving role with MR. There was no discussion with him about the nature of the investigation, nor was there any follow-up or report back regarding the outcome. Until 2018 the Applicant had no idea that the allegation against him had been “verified” and that the Society would use that conclusion to justify sending the letters in 2018.

18The Applicant’s perception of the investigation was borne out by the evidence of LK, the Intake Worker. She confirmed a single telephone call with the Applicant in which she recalled getting his agreement to observe the “safety plan” whereby the Applicant would not be alone with MR. She did not explain that the identified child in the investigation was MR. She spoke with JR who is the Applicant’s spouse, she met with JR’s daughter RR and her daughter MR. She closed the file at Intake coding it as “verified”. She wrote the following in the Ontario Verification Conference/Investigation Summary: “5.1.E is verified. There is an outstanding allegation and charge against (the Applicant) of sexual interference. The file will be closed as the risk is mitigated given that all parties are aware and agree to the safety plan.” At the hearing Code 5.1.E was explained to mean “Caregiver has a history of abusing, neglecting or exploiting a child, or it is previous abuse or neglect of similar children.” The file is coded when the referral comes in and, in this circumstance, it remained the same after the investigation.

19LK confirmed that in conducting her investigation she had access to the police report and the “detailed narrative of the victim’s statement and more than one person made allegations against the Applicant.” She also confirmed with the arresting officer that the Applicant was released after his arrest with no conditions restricting his access to children. She said the risk of sexual harm was verified because of the outstanding charges. She closed the file on November 26, 2014 because the safety plan agreed by the Applicant, his spouse, and MR’s mother mitigated the risk.

20JR and RR both testified on behalf of the Applicant. He has been in their lives for many years. JR and the Applicant have lived together since 2011. RR and MR did not live with them but, between 2011 and 2015, JR and the Applicant occasionally babysat MR. JR said she did not believe the allegation but understood the Society’s role in protecting children so complied with the Society’s direction about not having the Applicant in a caregiving role with MR.

21RR testified that she has known the Applicant for the past 40 years (since she was 4 or 5) and her daughter MR has known him since birth. She has never seen him mistreat any child. As a teen, she was alone with him often and testified that he never abused her. RR has left her daughter MR in his care many times over the years without incident. MR was questioned by the worker and confirmed that fact. RR did not recall specific reference by the worker to a “safety plan” and she does not believe such a plan was necessary, but did agree to follow the worker’s direction that (Applicant) was not to be in a caregiving role with MR. She said that she and her daughter have always felt comfortable and totally safe in his presence.

22The Applicant’s friend CC testified that she and the Applicant have been personal and professional friends for over 40 years. She has two daughters who were 7 and 10 when she met the Applicant. He was never in a caregiving role with them but was in regular contact and they thought highly of him. He remains a trusted and respected person in all respects.

23The verification decision focussed solely on the potential risk of harm that the Applicant posed for any children where he was in a caregiving role. For the Society’s purposes, the information from a brief conversation with the Applicant, his spouse, and a meeting with his step-daughter and step-granddaughter with agreement not to have the Applicant in a care-giving role was sufficient to conclude there were no ongoing protection concerns regarding MR.

24The worker told the Applicant that her investigation was separate from the police investigation. But she did not otherwise explain the investigation process, gave him no feedback, and there was neither explanation nor an opportunity to discuss the implications of the Society’s decision to “verify” code 5.1.E. When the worker “closed” the case at Intake in 2014, no effort was made to advise any of the affected parties of the outcome.

25In the course of this hearing the Applicant was given reasons for the verification decision in 2014. He had an opportunity to explore his concerns about the Society’s decisions through disclosure and the questioning of witnesses. In his own testimony and submissions he was able to share the impact of the Society decisions on his life, his reputation and on his ability to give back to his community through his volunteer work.

Issue 2 - The Letter to Community Agencies 2018

26In 2018 the Society decided to send a letter to various community organizations with which the Applicant was or may have been involved as a volunteer, It states in part “The purpose of this letter is to advise you that, as a child protection agency, we have concerns should this individual be having unsupervised contact with children. We are unable to provide you with specifics of those concerns but you are requested to pay heed to this letter and exercise your best judgment should (Applicant) be assuming any role with your organization that would involve contact with children.”

27The decision four years after the verification decision to deem the Applicant a general risk to children in the community and then send out the letters was separate and distinct from the verification decision in 2014 which dealt with the very narrow issue of risk to the particular child, MR.

28The Applicant testified that his privacy and standing in the community have been violated. When he got the telephone call in 2018 the Society had already decided to send the letters. There was no opportunity for discussion with him about his role, if any, with the various organizations, or whether he had unsupervised contact with children in that role. He advised the caller that he was found not guilty of the alleged sexual interference charge. Reportedly both she and her Manager, KD, told him it did not matter.

29Director of Intake, KB, testified that she was the person who reviewed the file and wrote the letters in consultation with legal counsel after the Society heard from SD in May 2017. SD contacted the Society to report that the Applicant was found not guilty on the charge of sexual interference against her, and that there was evidence at the trial that he was a volunteer with some children’s organizations. On receipt of that information the Society re-visited its earlier investigation. It requested and reviewed the trial transcripts. Internal consultations with Society Directors, meetings with the High-Risk Committee, and ongoing consultation with legal counsel followed. The Committee ultimately made the decision to issue the letters.

30The recipients of the letter were the result of a Google search by KB. It was sent to 5 organizations. The society did not send the Applicant a copy of the letter. It contacted him by telephone, told him the decision had been made, and the letters were being sent. There was no discussion about his role in these agencies/organizations, or whether his volunteer work involved children. KB said she had a subsequent telephone call with the Applicant but was unable to discuss anything because he “was yelling and screaming at me and he hung up”

31KB testified that the Society was cognizant of the sensitive nature and potential consequences to the Applicant of sending these letters. She reviewed the Society file notes and recordings, the trial transcripts, and the Judge’s decision and reasons. No new information was considered. Asked what tipped the balance in favour of sending the letters the witness said that the judge did not have the police statements of the other two potential victims and that lent credibility to SD’s allegations. “Our primary concern is the safety of children and the community. Our test is not beyond a reasonable doubt because of the nature of our vulnerable population.”

32KB said the Society and police records checks on the Applicant were both negative. She relied on her training with the Dr. J. Yuille tool which was designed to assess the credibility of sexual abuse allegations and determine whether they are fabricated or not. She applied this tool to her assessment of the trial transcript evidence of the alleged victim SD and to the police statements of the other two alleged victims and concluded they “rang true”. She said the tool was based on years of research and had proven to be effective.

33CV testified on behalf of the Applicant. He is the president of a community organization which provides computers for kids. He has known the Applicant for 25 years and the Applicant has been involved with the witness’s company for the past 16 years. The Applicant was on the board of this organization until the Society letter and he was a long-term volunteer. The organization participates in an annual 4-day public information festival which children and families attend. The Applicant was an original founder of the event and his role was to assist with setting up and taking down the displays and to take photographs of the participants for promotional materials. He was never in a supervisory role with children. The witness described downloading the Applicant’s camera to his hard drive together. He has reviewed thousands of his photographs from the festival over the years. “There was never a reason for concern about (the Applicant).” The letter from the Society was “a shock” to him. The Applicant resigned from the board of the witness’s company but continues to volunteer with his organization. He no longer participates in the annual festival because one of the other organizations that received the letter decided that Applicant should not attend.

34KB was asked if the Society ever re-visits a verification decision. She said she had re-visited this one and determined that the verification would remain. She confirmed that she reviewed the original Society file which included the police report, nothing new except the trial transcripts. Asked why she did not see a need to gather new information regarding the applicant before sending the letters, her response was “We had what we needed”.

35Clearly no consideration was given by the Society in 2018 to the 2014 interviews with the Applicant’s spouse, step-daughter or step-grand-daughter. The Applicant’s son and grandson were not interviewed at either point.

36Our conclusion on the evidence is that the Society did not provide the Applicant with reasons for its decision in 2018 to send the letters or an explanation as to how it balanced the information available to it before doing so.

The ICRP

37DD testified on behalf of the Society. She is Director of Family Services with the Society and was part of the Internal Complaints Review Panel (ICRP) the Applicant appeared before on September 7, 2018. The meeting lasted a couple of hours and she said the Applicant was very impassioned, very appropriate, and he presented well.

38DD wrote the ICRP reporting letter back to the Applicant on September 27, 2018. After his presentation to the ICRP, the panel reviewed the Society file, case notes, recordings, transcripts and decision-making. She concluded the worker and supervisors reviewed the relevant factors and the mitigated risk to MR. The verification process is looking at the likelihood or probability that an incident occurred and if it did, the risk is elevated. The conclusion in 2014 was that the risk was verified but Applicant was not in a care-giving role to MR so the child was not at risk. The witness’s assessment of the file supported that conclusion.

39DD acknowledged that the Society had not contacted the Applicant’s son or grandson as part of its 2014 investigation. It had information from the Applicant and JR that he was not in a caregiving role with his grandson so there was no perceived need to speak with them. Following the ICRP she spoke with the Applicant’s son and confirmed this. She also confirmed there was no evidence of a letter having been sent to him.

40The Applicant questioned the witness as to what she meant in her letter by her reference to there being a “risk of sexual harm in the past?” DD testified that the Society had received information about two other victims. She acknowledged that this information was in the file at Intake and was not new information. The only new information was from SD regarding the not guilty verdict and trial testimony about the Applicant’s volunteer work in the community. DD said the Society looks at allegations of wrongdoing several years ago, asks has the person taken counselling or responsibility for his actions, has there been a change in lifestyle? If not and the person remains in denial then there is nothing to mitigate risk.

41DD concluded that the 2014 investigation was thorough and verification was appropriate. She acknowledged the time delay (2014 – 2018) and, to the question, why did no one speak with the Applicant before to 2018 letters, she said “I think in future we would consider interviewing.” The ICRP response lacked sufficient information for the Applicant to understand why the Society maintains that he remains a risk to children.

DECISION

42Regarding Issue 1, the CFSRB finds that the Society ought to have clarified in writing to the Applicant that its 2014 investigation had verified risk based on the outstanding charges, and that a safety plan had been proposed and agreed to by those involved in the process. This would have given him notice, and possibly an opportunity to question the decision and/or learn the implications of verification. No further steps are indicated on this point as it has been clarified in the course of the CFSRB process, documentary disclosure and the hearing.

43Regarding Issue 2, we find that the Applicant is rightfully aggrieved that the Society did not attempt to engage with him when they were deciding whether to send the warning letters about him to community organizations 4 years after the initial investigation. The Society did not meaningfully involve the Applicant in the decision, he was not given the opportunity to express his concerns and views, and he was not given a satisfactory explanation for the steps the Society took in 2018 which dramatically affected his standing in the community.

ORDER

44Within 30 days, the Society shall provide the Applicant with a written explanation to help him understand the Society’s decision to send letters to 5 community organizations in 2018 asserting that he may be a general risk to children in the community. The reasons shall include:

• An explanation of the Society’s considerations of credibility, and its apparent preference for the historical allegations from SD over the Applicant’s denial and the judge’s acquittal;
• An explanation of the Society’s application of the balance of probabilities test to all of the information obtained during the investigation including in-person interviews or documentary evidence (sworn statements, court transcripts, records);
• The rationale for the selection of each organization to which the letters were sent including city Parks and Recreation department;
• An explanation of the Dr. J. Yuille factors relied on by the Society in coming to its decision to send the letters;
• An explanation of what steps the Applicant could take or what information he could provide that may result in the Society changing its conclusion that he continues to be a risk to society; and
• If the Applicant wishes a follow-up ICRP meeting, he shall be given that opportunity provided he notifies DD by letter within 30 days of receipt of the Society’s letter of explanation.

confidentiality order

45Pursuant 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.