GE v. Halton Children's Aid Society, 2019 CFSRB 65

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

GE

Applicant

-and-

Halton Children’s Aid Society

Respondent

DECISION

Adjudicator: Brenda Bowlby

Date: October 23, 2019

Citation: 2019 CFSRB 65

Indexed As: GE v Halton Children’s Aid Society (CYFSA s.120)

APPEARANCES

GE, Applicant

GE, Representative

Halton Children’s Aid Society, Respondent

Diane Skrow, Counsel

Jennifer Binnington, Director, Protection Services

Introduction

1GE (“the Applicant”) filed an application on July 18, 2019, under sections 120(4)4 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched.1 (“the Act”) against the Halton’s Children’s Aid Society (“the Respondent”).

2A pre-hearing in this matter was held on April 30, 2019 in which it was determined that a hearing would be heard with respect to the following issues:

a. The Applicant alleges that it was not appropriate for Elaine Falzon, Child Protection Worker, to attend a Violent Threat Risk Assessment (VTRA) meeting on January 10 or 11, 2017 without the Applicant’s knowledge or consent.

b. The Applicant alleges that the Respondent failed to check whether information it was given about pending criminal charges against him was accurate; and

c. The Applicant alleges that the inaccurate information about pending criminal charges against him had a negative impact on the Respondent’s approach to the investigation.

3Issues b and c will be dealt with together in this Decision.

4The hearing was held on October 9, 2019. I heard evidence from the Applicant and, on behalf of the Respondent, I heard from Child Protection Worker Elaine Falzon (“the case worker”).

5Although the Applicant alleged that the Respondent had inaccurately recorded something in his file, he did not first make a complaint through the Respondent’s internal complaint review process as required by s. 68 (5) of the Child and Family Services Act, R.S.O. 1990, c.C.11, which continues to apply on a transitional basis to complaints regarding inaccuracies in children’s aid society files. Accordingly, this complaint was not eligible to proceed to a hearing before the CFSRB. It was made clear to the Applicant during the final argument stage at the hearing that this issue would not be dealt with.

6For the reasons that follow, the application is dismissed.

The Law

7The relevant sections of the Act are as follows:

119 (1) A person may make a complaint to a society relating to a service sought or received by that person from the society in accordance with the regulations.

(5) If a complaint relates to one of the following matters, the complainant may apply to the Board in accordance with the regulations for a review of the decision made by the society upon completion of the complaint review procedure:

1. A matter described in subsection 120 (4).

120 (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).

8Section 15(2) provides:

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.

9The Act does not mandate or permit the CFSRB to make determinations as to the clinical wisdom or validity of decisions made by the Respondent and for which the Respondent is giving reasons under s. 120(4)5.

background

10The complaint concerns events in late 2016 and early 2017.

11On November 30, 2016, the Applicant’s daughter, “S” left school without permission. The principal called the police. The principal also contacted S’s mother. S. was found walking home from school. The principal also contacted the Respondent.

12An email chain, between Halton District School Board staff, including the principal’s email dated November 30, 2016, was put into evidence at the hearing. The principal’s email discloses that the principal had received information about S from a couple of students.

13The students told the principal that S said she heard voices telling her to do bad things, that S had been absent on the prior day because she believed she would hurt someone, that she googled images of knives shortly before leaving the school property, and that she used to be friendly but was now eerie and odd. The principal also stated in this email that the Applicant had spent some time in prison for possession and distribution of child pornography a couple of years ago. The principal said in this email that she spoke with S’s mother and that S’s mother was aware of a Violence Threat Risk Assessment meeting (“VTRA”) to be held at the school the next day.

14The Applicant denied that either he or S’s mother were aware of the VTRA.

The VTRA Protocol

15The Halton Community VTRA Protocol (“the Protocol”) was put into evidence during the hearing. It appears to have been developed by the Halton Regional Police Service (“the Police Service”) and the two Halton school boards. It is signed by Police Service and its “community partners”. These partners include the Halton school boards, and the Respondent, along with a number of other organizations including health care agencies, youth agencies and government departments – in all 16 signatories to the Protocol.

16The Protocol reflects an expression of the commitment of signatories to work together collaboratively to deal with threats of risk in schools and “to share information to avert or minimize imminent risk of violence that affects the health and safety of a person”. A ‘Statement of Principle’ in the Protocol commits all signatories to working together to ‘take steps to prevent traumatic events in schools”.

17It is important to note that while the Protocol sets out the commitment of the signatories to work collaboratively, there is no agreement in the Protocol whereby any individual signatory either cedes its authority to make decisions within its particular mandate or to be bound by any decisions made by the other signatories. There is nothing in the Protocol to suggest that the signatories, acting together, may make decisions that bind the other signatories.

18The Protocol describes generally the steps in the VTRA process for “identifying, evaluating and addressing potential risks.” The outcome of a VTRA meetings can include a “Intervention Plans of Action” for the student. The Protocol provides no definition of an “Intervention Plan of Action”. It appears that this Plan would reflect any step which any of the individual organizations might decide to take in the particular circumstances.

The First VTRA meeting

19On December 1, 2016, a VTRA was convened by the school and was held at the school. In addition to representatives from the school and the Police Service, the case worker attended the VTRA meeting as the Respondent’s representative.

20While the case worker agreed in cross examination that she attends VTRA meetings on behalf of the Respondent as a participant, at the same time she also stated that she advised the other participants at this meeting that she was in attendance only to observe and collect information. She did not share any information at the meeting or participate in any decision making at the meeting. There is no evidence that she offered any opinion at the VTRA meeting.

21The case worker conceded that the Respondent was a signatory to the Protocol and had agreed to abide by it. She also agreed that the Respondent is a partner in the process. She agreed that as an employee of the Respondent, she had to abide by the Protocol. She said that she was bound to provide information if there was a safety concern. The case worker testified that she would only share information without the consent of parents or a child in circumstances where there a safety issue that is a risk.

22During the VTRA, the police constable, representing Police Service told the case worker that there criminal charges were laid against the Applicant relating to fire arms, child pornography and drug trafficking. He advised the case worker not to go to the Applicant’s home alone. Notes, contained in the Respondent’s file included the following: “Suspicions that the father is residing in the home which could be a concern based on history. Charges for child pornography still pending.”

23The Applicant testified that in 2013 he was acquitted of the child pornography charges and he provided a copy of the Court’s endorsement along with a copy of a story about his acquittal from a local newspaper. He acknowledged in cross examination that he had been convicted of the fire arms and drug trafficking charges.

Events following the first VTRA

24On the evening of December 1, 2016, S advised her parents that she had been searched at school that day. The next day, the Applicant called the principal who told the Applicant that a VTRA meeting had been held on December 1st and that the intervention action plan included a search of S.

25On December 5, 2016, the case worker attended at the parent’s home, along with a colleague. She testified that she brought the colleague because of the warning she had received from the police officer at the VTRA that the Applicant had charges of fire arms and drug trafficking. She specifically denied that the police officer’s statement, that the Applicant had charges of child pornography outstanding, factored into her decision to take a colleague with her.

26The case worker asked to interview the children. GE declined to allow her to do so and declined to discuss the matter with the case worker. Instead, he asked for the phone number of the case worker’s supervisor and spoke with the supervisor instead.

27A notation in the Contact Log in the Respondent’s file, dated December 15, 2016, indicates that the case worker spoke with “the mother and the father”, that they did not want CAS involvement but said they were working with the school and a doctor who was referring S to a psychiatrist, and that the mother would provide the case worker with information to support this. A case note from the case worker’s supervisor states that once this information was received, the file would be closed without an investigation “as it appears parents are meeting child’s needs.”

28In the meantime, the case worker had been continuing to attempt to interview the Applicant’s children at their school. However, S was no longer attending school and her parents ultimately decided to withdraw her from school and “home school” her. The case worker spoke with the Applicant and S’s mother by phone around this time. The case worker spoke first with the Applicant who seemed unaware of the concerns about S which the school had reported.

29The case worker’s next contact with the Applicant and S’s mother was on December 22nd. No letter from the doctor confirming that treatment for S was being pursued had yet been provided by the Applicant or S’s mother. During a telephone conversation on December 22nd, the case worker advised the Applicant and S’s mother that the doctor’s letter would have to set out that he was aware of. the behaviours that had been reported to the Respondent by the school. The case worker confirmed this requirement in a letter which also directed that S be seen by a doctor by no later than December 30th. The Applicant, accordingly, took S to the local hospital’s emergency department. However, he did not show the case worker’s letter to the doctor who saw S. The Applicant and S’s mother were told that they had to go back to the doctor and show the letter, as requested in the letter.

30The case worker was questioned by the Applicant in cross-examination about whether the information she had received, that there were child pornography charges outstanding against the Applicant, in any way influenced her perception of him or the manner in which she approached or conducted her investigation. The case worker was firm that this information had had no influence on her investigation or her approach to it. She stated that the information regarding the fire arms charges and drug trafficking was what caught her attention when the police constable advised her to take someone with her when she attended at the Applicant’s home.

31She denied that the information regarding child pornography charges played a part in the decision to require that the doctor examining S be shown the letter of December 22nd, setting out the school’s concerns about S. She pointed to the fact that the Applicant did not seem to know about these concerns when she spoke with him.

32The case worker indicated that the child pornography charges were not an issue for her because she knew, as a result of her review of the file history that a child protection investigation had been conducted at the time of the child pornography charges were outstanding and that the file on that issue had been closed. She stated that because she was fully confident at the conclusions reached by her colleagues who conducted that investigation, there were no issues remaining concerning the child pornography charges as far as she was concerned.

The second VTRA

33A further VTRA was set up by the school on January 11th, 2017. The case worker attended this meeting but again told the other participants that her attendance was as an observer only. She testified that she chose to attend this meeting because she had not been able to interview the Applicant, S’s mother or their children at this point. She viewed the meeting as a way of collecting any available information. The case worker denied doing anything other than observing during this meeting: specifically, she stated that she shared no information. Moreover, there is no evidence that she participated in any decision making by the VTRA regarding a plan for S.

34Ultimately, in the new year, a letter from the doctor setting out the information requested by the Respondent was provided by the Applicant and his children were brought into the Respondent’s offices where they were interviewed by the case worker. The Respondent closed its file in this matter in April with no child protection concerns noted.

analysis

Issue 1: The attendance by the case worker at the VTRA on January 11, 2017.

35First, s. 15(2) gives parents the right to be heard when they have concerns about the services they are receiving or when decisions affecting their interests is made, and to be given reasons for those decisions.

36The Applicant’s argument is that because the caseworker attended the VTRA meeting and was a participant in the meeting on behalf of the Respondent, the Respondent is bound by any decisions made at the VTRA by any of the other participants or any of them – that is, any decisions made become the decisions of the Respondent. The Applicant says that he was not consulted about or given and opportunity to be heard about any such decisions and so his rights under s. 15 (2) were denied.

37The difficulty with this argument is that it presumes that the signatories to the Protocol have ceded or otherwise delegated their authority to make decisions to the other participants at VTRA meetings and/or have agreed to be bound by and adopt whatever the other participants decide. However, nothing in the Protocol suggests that any of the signatories have ceded their individual decision-making authority to the other signatories when meeting as a group at a VTRA meeting. Equally, nothing in the Protocol makes the decisions of other participants at a VTRA meeting binding on the other participants

38Moreover, the basic tenets of administrative law regarding the authority and responsibilities of a body created by statute, such as the Respondent, strictly limit the ability of statutory bodies to delegate their decision making authority. No such delegation can be made unless the statute which defines the powers of a statutory body permits the delegation. Nothing in the Act permits the Respondent to delegate its decision making authority to the other participants of a VTRA meeting.

39The only real obligation imposed by the Protocol on a community member by the Protocol is to share information where there is an imminent safety risk of injury through violence to a person. Any decision made by any participant to take an action, which then becomes part of an Intervention Action Plan resulting from a VTRA meeting, must be within the mandate of that signatory and the decision to take that action is the participant’s decision, not the group’s decision.

40Since the case worker determined that she had no obligation to share information in this case, she made clear to the other participants that she was there as an observer only and her only involvement was to collect information. She did not actively participate in any decision-making process of either the first or second VTRA such that any decision made at either VTRA was a decision of the Respondent.

41Further, and in any event, there was no evidence that any decision was made by the VTRA on January 11th that affected the Applicant’s interests.

42With respect to the attendance of the case worker at the VTRA for the purpose of collecting information, Section15(2) does not impose a requirement on children’s aid societies to notify parents and obtain their consent before communicating with community members regarding their children.

43Further, the mere receipt by a children’s aid society of information as an attendee at a meeting such as the VTRA meeting does not gives rise to rights under s. 15(2). It is not until the Respondent turns its mind to making a decision that affects the interests of a parent or child that the right to be heard and be given reasons arise. This did not happen when the case worker attended the VTRA meeting on January 11th.

Issue 2: The Respondent failed to check whether information it was given about pending criminal charges against the Applicant was accurate and this information negatively impacted the investigation.

44The Respondent has acknowledged that it did not take any steps to verify information given to the case worker by a police officer at a VTRA that there were child pornography charges outstanding against the Applicant. The Respondent has also acknowledged that this information is wrong. In final argument, counsel for the Respondent acknowledged that there were no child protection charges outstanding against the Applicant during the relevant period and that the charges had been dismissed in 2013.

45However, the case worker’s evidence is clear that, in any event, this information did not factor into her investigation or the way in which she viewed any child protection concerns.

46Section 15(2) imposes no obligation on a children’s aid society to verify a piece of information it receives about a parent where that information is not a factor in a decision that affects the interests of the parent. The misinformation received by the case worker that there were child pornography charges outstanding against the Applicant was not a factor in any decisions made by the Respondent in the matters which are the subject of this case.

Conclusion

47In the circumstances outlined above, I find that the Respondent did not fail to provide an opportunity for the Applicant to be heard in respect of a decision that affected her interests or to be given reasons for any such decision.

order

48The application is dismissed.

confidentiality order

49Pursuant 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.