AT v Family & Children’s Services of the Waterloo Region, 2019 CFSRB 64

Child and Family Services Review Board

Between:

AT, Applicant

-and-

Family & Children’s Services of the Waterloo Region, Respondent

Decision

Adjudicator: Michele O’Connor Date: October 23, 2019 Citation: 2019 CFSRB 64 Indexed As: AT v Family & Children’s Services of the Waterloo Region (CYFSA s.120)

Appearances

AT, Applicant Self-represented

Family & Children’s Services of the Waterloo Region, Respondent Ms. Charu Smith, Counsel

Introduction

1A.T. (“the Applicant”) filed an application against Family and Children’s Services of the Waterloo Region (“the Respondent”) on June 6, 2019 under section 120(4)5 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1, (the Act)

2A Pre-Hearing was held on August 20, 2019, in which it was determined that there would be a hearing with respect to the Applicant’s allegation that the Respondent has not provided her with reasons for the following:

1. Refusal to disclose to the Applicant its records related to her son; and
2. Refusal/failure to communicate with the Applicant.

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 her complaint.

4The hearing was held on September 27, 2019. I heard evidence from the Applicant, and from CF, the Child Protection Worker “(the worker”) on behalf of the Society. Documentary evidence was filed by both parties.

5For the following reasons the CFSRB finds that the Society did not provide the Applicant with satisfactory reasons for its refusal to disclose its file pertaining to her son, and it failed to communicate with the Applicant.

BACKGROUND

6The Applicant is the mother of 2 children, NT born […], 2006 (‘the child”), and ATW born […], 2014.

7NT’s father is TM. ATW’s father is BW.

8On January 29, 2019, Justice M. Pawagi found both children in need of protection. Following a lengthy child protection trial she ordered that they be placed in the care of their respective biological fathers subject to Society supervision with conditions for a period of 6 months with access between NT and the Applicant two weekends per month and sibling access as arranged between TM and BW. Access between the Applicant and her son has been problematic and there have been periods when she has not been able to see her son.

9The child protection file in this matter is open to the Catholic Children’s Aid Society of Toronto (CCAST). In December 2018 CCAST requested that the Respondent Society monitor the placement of NT with his father who resides in the Society’s catchment area.

10The Applicant’s CCAST worker told her to request information about her son from the Respondent Society and provided her with the worker’s name and contact information.

11Justice Pawagi’s Order required that the Respondent Society bring a status review application regarding NT prior to the expiry of the 6-month supervision order.

12On September 26, 2019, responsibility for ongoing supervision of NT in his father’s home was officially transferred from CCAST to the Respondent Society.

13The Society filed a status review application returnable on July 25, 2019. The Applicant was served with a copy of the application and supporting affidavit of the worker. The matter is currently on adjournment pending Answers being filed by the Applicant and TM respectively.

14The Applicant requested disclosure of the Respondent Society’s file but was refused. She was previously given full disclosure of her file by CCAST.

15The Applicant has not met with or spoken to the worker, CF, except for a brief encounter at court at the first appearance on July 25, 2019.

ANALYSIS

16The relevant provisions of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14 (“the Act”) in this matter are:

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

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:

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

(e) dismiss the complaint.

17In PO v. Family and Children’s Services Niagara 2012 CFSRB 38 at paras. 14 -15, the Board described the purpose of provisions equivalent to s.120(4)5 of the Act in its predecessor legislation. The Board described the purpose of sections 68.1(4) 4 and 5 of the Child and Family Services Act, RSO 1990, cC.11 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 her concerns are taken seriously and dealt with thoroughly.

18This description of the purpose applies to the current legislative scheme. Moreover, the right to reasons under the Act means a right to a meaningful explanation about decisions that affect the applicant’s interests, In JG v Windsor Essex Children’s Aid Society, 2013 CFSRB 8, the CFSRB held that:

With respect to s.68.1(4) 5 (now s.120(4)5), 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 parent 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.

ISSUE 1 - Disclosure Refusal

19The Applicant established in her oral testimony and documents filed that she had requested file disclosure from the Society both directly and through her worker at CCAST. Her first request was on February 22, 2019. On March 11, 2019 her CCAST worker followed up with another request to the worker. The worker responded by email on March 27, 2019 forwarding an email from the Society Records clerk advising CCAST: “We can only release information to mom about herself. We cannot give her any information on dad or his care of the child, unless she has a court order directing us to produce a copy of the file. If our file is only about dad, then there is nothing we can give her.”

20On May 29, 2019 the CCAST worker wrote again enquiring about the process for the Applicant to get disclosure asking “Is it by filing a motion in your court? Is it by written requests and consents signed by TM and NT?” The Society worker re-sent the same message from the Records Clerk as she had sent on March 27, 2019.

21Not until after the pre-hearing in these proceedings, i.e. on August 21, 2019, did the worker request permission from TM to disclose the Society file to the Applicant. He declined on that date and again on September 26, 2019.

22Children’s Aid Societies are required to keep records about the services they provide under section 3(1) of the Act. As such, documents recording the provision of services are an integral part of the service itself. The CFSRB has determined that a request for disclosure is part of the service relationship between an applicant and a children’s aid society. See ST v Children’s Aid Society of Toronto, 2013 CFSRB 52 at para. 16.

23The Applicant says that she needs access to the Society file in order to properly respond to the status review application. She is the respondent in these court proceedings about her son. She has concerns about his placement with his father and the Society’s recommendations. She also has serious and ongoing concerns about her access with NT even though the materials filed by the Society suggest that access is satisfactory. In its court materials there is extensive reference to the Applicant. The Society is requesting a discretionary role in her access where there was no such involvement in the order under review. Given that the Society has not met with her, she is concerned about the one-sided nature of the information it is relying on in the court materials and questions the accuracy of the reporting.

24Society counsel confirmed in this hearing that the claim in the status review application for the Society to have discretionary involvement in access between the Applicant and her son was included in error. It is not the Society’s intention to pursue this discretionary order and she assured the Applicant this will be corrected when the parties are next before the court.

25The Society asserts that its file relates only to TM and the child NT. Therefore, it cannot disclose the file to the Applicant without TM’s consent which he has refused.

26I find that the Applicant requires and is entitled to disclosure of the Society file as it pertains to her and to her son’s well-being. Some redactions may be necessary regarding 3rd parties, including but not limited to TM, but any redactions shall be accompanied by an explanation of the reason for the redaction.

Issue 2 – Refusal to meet or communicate with the Applicant

27On February 23, 2019 the Applicant called the Society’s emergency after-hours service regarding a concern about her son. A Society worker left her a message the following morning advising her that her file is open to another agency - “I’m going to forward you back to your home agency, the agency that owns your file.”

28On March 5, 2019, the Applicant left a voice message for the worker advising that she is NT’s mother, that she is calling to make contact with the worker and to see how her work is going with NT and what services are being provided to NT and TM. She requested a call back and provided her contact information. It is undisputed that her call was never returned by the worker.

29The worker testified that the reason she has had no contact with the Applicant is because “the scope” of her work with this family was to monitor the placement of NT with TM. In the worker’s view, the Applicant remained a client of CCAST.

30The worker acknowledged receipt of the Applicant’s March 5, 2019 voice message requesting contact and information. It was apparently overlooked until the worker was preparing the Society’s response to this CFSRB complaint in July of 2019. In that response the Society apologized for the oversight and expressed a willingness to have a meeting or phone call with the Applicant. There was no attempt by the worker to follow up on this offer.

31A contact log filed by the Society confirms that the worker’s sole attempt to communicate with the Applicant was an email on September 24, 2019 in which she wrote as follows: “I am writing to ask if you want us to meet and talk about N and our agency involvement so far. We can meet before or after the hearing on Friday September 27 at your convenience. Or we could agree upon another day to meet up. Being aware of the fact that you would need to drive to Waterloo and back, I was thinking maybe we could find days when you would be here for let’s say Court appearances when the case; or we can talk and find other options. Please let me know what works best for you at this moment. Thank you.”

32The evidence confirms that the only contact between the Applicant and the Society worker was a brief meeting at the first court appearance on the status review application July 25, 2019.

33The worker admitted during her testimony that she made no attempt to explain to the Applicant the reason(s) for her reluctance to communicate with her, and there was no attempt to explain to the Applicant why the Society refused her disclosure request.

34The worker said she had “no idea” why she was not notified of the Applicant’s emergency after-hours call in February although she confirmed that the usual practice is for the worker to be notified.

35In response to questions about her efforts to follow up on the access piece of the supervision Order, the worker testified that she asked the child, NT, about how the access was going each time she met with him. She said she was unaware of the actual schedule but that she always encouraged TM to follow the Order. She knew that sometimes TM did not have the financial resources or parental support to facilitate the transport for N’s access with the Applicant resulting in periods when NT’s access with her did not take place. The worker did not speak with the Applicant in any of these circumstances. Rather she maintained contact over the 8 months of her involvement only with the CCAST worker.

36Now that the file has been officially transferred from CCAST, the worker says she is “obligated” to meet with “parents” at least every 30 days. Going forward the worker said that the Applicant can now contact her directly if she has concerns about her son and that she will schedule meetings with her regularly.

DECISION

37Regarding Issue 1, I find that the Society ought to have provided the Applicant with access to information in its file pertaining to her son when she requested it. Its failure to do so impacted her ability to understand and respond to the materials filed in the status review application.

38Regarding Issue 2, I find that the Society failed to communicate with the Applicant during the 9 months of its supervision of her son’s placement with his father. There was no attempt to explain to the Applicant why the Society did not return her calls, nor did it seek her input at any point in the preparation for the status review even though the worker was aware of access difficulties and made a number of specific references to the Applicant in the materials filed with the court in support of its recommendations.

ORDER

39Within 30 days, the Society shall provide the following to the Applicant:

• disclosure of its records pertaining to the child NT. Redactions to 3rd party references shall be accompanied by a written explanation of the reason for the redactions;
• a copy of the Society’s disclosure policy;
• a written explanation for its refusal /failure to communicate with the Applicant; and
• an outline of the Society’s plan to work with the Applicant going forward including what steps she can take to participate more fully in the planning regarding her son.

Confidentiality Order

40Pursuant 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.