RR v. Children’s Aid Society of London & Middlesex, 2020 CFSRB 114

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

RR Applicant

-and-

Children’s Aid Society of London & Middlesex Respondent

DECISION

Adjudicator: Daniel McSweeney Date: December 21, 2020 Citation: 2020 CFSRB 114 Indexed As: RR v Children’s Aid Society of London and Middlesex (CYFSA s.120)

APPEARANCES

RR, Applicant Self-Represented

Children’s Aid Society of London & Middlesex, Respondent Denise Marshall, Counsel

INTRODUCTION

1The Applicant and the Children’s Aid Society of London & Middlesex (the Respondent) entered into a Settlement Agreement (the “Agreement”) during a mediation held on November 2, 2020, providing for a full settlement of all issues raised in the Application, received on July 14, 2020 by the Child and Family Services Review Board (the “CFSRB”).

2The Agreement contained 15 Terms which contained questions which the Respondent agreed to answer. The Settlement Agreement had an implementation date of November 23, 2020, and a non-compliance date of November 30, 2020.

3The Respondent sent the Applicant a letter on November 24, 2020 with its responses to the Terms outlined in the Agreement. The Applicant responded with several e-mails (November 30, 2020; 2 e-mails December 14, 2020) in which she alleged that the Respondent had not complied with the terms of the Settlement Agreement. The e-mails alleged that the facts and conclusions relied upon by the Respondent were incorrect. The Applicant disagreed with the Respondent’s investigation process; its verification decision; as well as with its conclusions regarding her mental health.

4In accordance with the CFSRB’s procedures, when there is an allegation of non-compliance, the CFSRB will hold a hearing by teleconference (the “Teleconference”) to determine whether the Society has complied with the Agreement. This Teleconference occurred on December 14, 2020.

DECISION

5After reviewing the materials submitted by the parties, and hearing their arguments, I find that the Respondent has met its commitments and obligations as set out in the Agreement and as required by the Child, Youth and Family Services Act, 2017 S.O. 2017, Chapter 14, Schedule 1 (the “Act”).

6The reasons for my findings are as follows.

ANALYSIS

The Law

7The CFSRB found the Application to be eligible for review under section 120 of the Act. The Act outlines the rights of Applicants, the duties and obligations of Children’s Aid Societies, and the mandate of the CFSRB.

8Section 120(4) of the Act reads as follows:

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 timeframe 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 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.

6. Such other matters as may be prescribed.

Subsection 120(7) indicates that: After reviewing the complaint, the Board may,

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

(e) dismiss the complaint

9The Act does not require or permit the CFSRB to make a determination as to the clinical wisdom or validity of a decision made by a Society in any given situation under review by the CFSRB and for which the Society is giving its reasons under this section of the Act.

10In an allegation of non-compliance, an Applicant’s statement of disagreement or dissatisfaction with the reasons given by the Society does not negate or invalidate those reasons.

The Teleconference

11At the start of the teleconference, I asked if there were any preliminary matters for discussion. The Applicant expressed her desire that the Respondent rescind its verification decision and retract the closing letter. The Applicant indicated that she intended to use evidence from these proceedings in a Court case against the Respondent. She argued that the Respondent had not answered any of the Terms adequately and repeated many of the concerns expressed in the complaint and her e-mails alleging non-compliance on the part of the Respondent.

12The Applicant was informed that the teleconference was to focus on the Terms of Settlement and no other issues. In addition, the Applicant was reminded that under sections 119 and 120 of the Act the CFSRB would never have jurisdiction to reverse or question a verification decision by a children’s aid society. The CFSRB has the narrow jurisdiction of reviewing whether an applicant has been heard; and whether an applicant has been provided with reasons for decisions that affected his/her interests. In addition, I remind the Applicant that the proceedings and all documents flowing from the proceedings are to remain confidential as per the CFSRB’s confidentiality provisions outlined in paragraph 57 below.

Terms of the Agreement

Term 1: The Respondent will provide the Applicant with a written explanation of how Respondent staff came to know of the Applicant’s alleged mental health concerns, and why these alleged concerns were included in the Applicant’s file.

13The Applicant maintained that the Respondent’s conclusions regarding her mental health were based on the biased opinions of those who the Respondent interviewed. The Respondent did not consider the statements of Dr. Eberhard regarding the Applicant’s mental health.

14The Respondent explained that mental health concerns were raised in the referral from the Ontario Provincial Police (OPP), and through statements made by the Child, her father, and her therapist. The Respondent also indicated that any information that is reported or gathered during an investigation is recorded in case notes, contact logs, supervision notes, and final documentation as per child welfare standards.

15I find that the Respondent has provided an adequate explanation to the Applicant as to how it came to know of the Applicant’s alleged mental health concerns and why these concerns were included in the Applicant’s file.

Term 2: The Respondent will provide the Applicant with a written explanation as to its reasoning for its verification decision related to the use of physical force and caregiver capacity.

16The Respondent indicated that verification decisions are based on criteria outlined in the Eligibility Spectrum. It explained that staff verified concerns (11F; and 53B) based on information provided by the Applicant, the Child, her ex-husband, the OPP and the Child’s therapist.

17The Applicant indicated that she disagreed with the investigation process and verification decision as it was based on the opinion of others. She maintained that she has never harmed anyone, and that the delay in speaking to her undermined the Respondent’s conclusions that she posed a risk of harm to the Child.

18Based on a review of the response and the Applicant’s concerns, I find that the Respondent has provided an adequate explanation for its verification decision. In this case, the Applicant simply disagrees with the decision and wants it overturned. This is not sufficient to ground an allegation of non-compliance on the part of the Respondent.

Terms 3-5: Respondent’s follow-up with the Applicant regarding the allegations, delay in initial meeting, and closing of the file.

19The Applicant was concerned that she had to contact the Respondent to initiate a conversation regarding the allegations. She wondered that, if she was a danger to her child, why the Respondent waited over a month to speak with her.

20The Respondent explained that, as per standard procedure, the Child was interviewed first. After this, the Respondent gathered information from collateral sources. Finally, the Applicant was interviewed on October 9, 2018.

21I find that the Respondent provided an explanation for the timing of its investigation process. It would seem as if the Applicant was using the timing of the investigation to undermine the fairness of the verification decision. It is clear from the documentation provided by both parties that the Applicant was interviewed and had an opportunity to be heard. It was unfortunate that the Applicant chose to bring a third party to the interview which severely restricted the ability of Respondent staff to answer the Applicant’s questions (disclosure of third-party information). In addition, Dr. Eberhard’s participation in the interview (challenging the credentials of the Child’s therapist) detracted from the purpose of the interview; namely, to gather the Applicant’s evidence, feedback, and perspectives regarding the allegations lodged against her.

22Based on the information before me, I find the Respondent has provided adequate answers for items 3 – 5 of the Terms of Settlement.

Term 6: Did the Respondent staff consider the potential impact of alleged parental alienation on the Applicant’s daughter? Did the Respondent investigate the Applicant’s allegations of parental alienation? If not, why?

23The Applicant indicated that she provided the Respondent with many examples of parental alienation, but the Respondent has not followed-up on her concerns. She argued that the Respondent should have considered the issue of parental alienation during its investigation into the allegations against her.

24The Respondent indicated that the initial file was not opened based on an allegation of parental alienation and that the Child, nor her therapist made reference to this issue. It was only after the file had been closed that the Applicant reported concerns of parental alienation to the Respondent. The Respondent investigated each of the 3 reports and found that the concerns did not meet the eligibility criteria for investigation. As such, the Respondent did not address the concerns further other than documenting the concerns in the case file.

25I find that the Applicant was provided with an explanation regarding the Respondent’s treatment of the issue of parental alienation. Firstly, the issue was not raised before the Respondent made its verification decision. Secondly, the Respondent received the Applicant’s reports of parental alienation on three occasions, considered the reports, and found that they did not meet the eligibility criteria for further action. The Respondent’s actions were adequately explained to the Applicant in the written response and in discussions at the non-compliance teleconference.

Term 7: Can the Respondent explain why the original closing letter was not sent to her at an address where she could receive mail when Respondent staff had the address of her clinic? Once the original letter was returned to the Respondent as undeliverable, what steps did the Respondent take to ensure that the Applicant received the letter?

26The Applicant argued that the Respondent had an obligation to verify that she was notified of the file closure. She maintained that her ex-husband gave the Respondent an address where she could not receive mail. She indicated that the Intake and Investigation Service Director indicated that when the Respondent received the returned letter, they did not do anything about it.

27The Respondent clarified that the standard practice is to send closing letters to clients’ homes. The Respondent would never send a letter to a workplace because of confidentiality issues. The Respondent did not receive the letter as returned mail and therefore was not aware of the requirement to take any further steps. The Service Director confirmed at the non-compliance teleconference that she never informed the Applicant that she knew the letter was not delivered to her.

28I find that the Respondent has explained why the letter was sent to the address it had on file. It has explained that it was not aware that the letter was not delivered and therefore no further steps were required. As such, I find the Respondent has adequately responded to this Term.

Term 8: Why did the Respondent redact or not release to the Applicant documents about her daughter in its disclosure, especially bearing in mind that the Applicant was a parent, and her daughter was 15 at the time?

29The Applicant alleged that the Respondent divulged to her ex-husband details about her interview. She did not agree with the redactions as her daughter had experienced a lot of trauma and was 15 years old at the time.

30The Respondent indicated that it was limited in what information it could disclose based on provisions in confidentiality and privacy legislation. It cannot divulge information specific to other individuals without their consent. The Respondent further explained during the teleconference that the Applicant’s daughter was at an age where she could consent to the release of the information. The guidance related to consent is included in Part X of the Act which indicates that it is assumed that people are capable of giving consent unless evidence is presented to the contrary. The Respondent did not have information that the Applicant’s daughter was incapable of giving or withholding consent.

31The Applicant was provided with an adequate explanation as to why the Respondent redacted information of third parties in its disclosure. The issue of the worker disclosing information about the Applicant’s interview was not included in the Terms of Settlement and therefore, I did not consider this issue in my decision.

Term 9: Did the Respondent consider or explore any potential conflict of interest between its employees who were dealing with this case and any employee of the OPP? If no, why did they not explore this after the Applicant’s reports of a potential conflict?

32The Applicant maintained that OPP detachment members were friends with her ex-husband which posed a conflict of interest for the investigation process. The Applicant also surmised that the worker assigned to the investigation also was friends with an OPP officer.

33The Respondent indicated that there was no evidence to suggest any conflict of interest until this issue was raised by the Applicant in 2020. She was directed to contact the OPP if she had any concerns.

34At the non-compliance teleconference it became clear that the allegations of conflict of interest were raised after the file was closed. This allegation was only raised during the Applicant’s reports of parental alienation.

35I find that the Applicant did not report the alleged conflict until after the allegations against her were verified and the file closed. The Applicant did not provide any evidence of a conflict of interest between Respondent staff and the OPP. The Respondent referred the Applicant to the OPP if there were any concerns with a conflict between her ex-husband and an officer.

36For these reasons, I find that the Respondent provided an adequate explanation to the Applicant regarding her allegations of a conflict of interest between Respondent staff and her ex-husband and the OPP.

Term 10: The Applicant maintains that HG was rude and inappropriate to the Applicant and Dr. Eberhardt at their meeting on October 9, 2018. Will the Respondent review the recording made of the conversation by the Applicant to determine if Ms. G’s behavior was appropriate and met the standards expected of child protection workers?

37The Applicant provided the Respondent with the recordings. She maintained that HG was condescending and rude and ended the interview.

38The Respondent indicated that the recordings were reviewed by the Child Protection Supervisor and the Intake and Investigation Service Director and that no concerns regarding the conduct of Ms. G were noted.

39This issue deals with the perception of a conversation. Both parties disagree on the tone of the worker. Despite this, the Applicant was informed that the recordings were reviewed by two senior staff and that no concerns were noted. As such, I find that the Respondent has complied with the Term.

Term 11: Why did Ms. G inform the Applicant’s daughter that the Applicant could have been charged for taking away her daughter’s phone?

40The Applicant indicated that she was not charged with an offence and there was no evidence of abuse. She questioned why the worker would have suggested to the Applicant’s daughter that the Applicant could have been charged for taking away a cell phone, especially given he daughter’s young age.

41The Respondent indicated that information was provided to the Applicant’s daughter in response to questions she was asked about when police become involved in chid protection investigations. The Respondent indicated that no other information could be released regarding this issue due to privacy restrictions.

42I find that the Applicant was provided with some information regarding the context of the discussion between the worker and the Applicant’s daughter. I concur that the Respondent is precluded from sharing third party information with the Applicant and therefore it could not provide any additional information regarding this Term. As such, I find that the Respondent has complied with this Term.

Term 12: Can the Respondent indicate to the Applicant if there are any avenues of appeal of the verification decision and the placement of the decision on the CPIN database?

43The Applicant indicated that she felt that the Respondent had complied with this Term. The Applicant’s questions were not being addressed directly by the Respondent.

44The Respondent reported that the verification was reviewed by the Director of Service and that the decision stands. Respondent staff followed proper investigative steps and had before them sufficient evidence to verify concerns. The Applicant has no other avenues of appeal. In addition, children’s aid societies are required to document all child protection records on the CPIN database.

45The Applicant has been provided with a clear response to the issue of whether or not she could appeal the verification decision, and why the decision was placed on the CPIN database. As such, I find that the Respondent has complied with this Term.

Term 13: Can the Respondent answer why the case note indicated that the Applicant broke her daughter’s phone when the Applicant maintains that her daughter broke the phone on September 3, 2018 when she threw it on the floor in the kitchen?

46There seems to be a difference of opinion related to this issue. The Respondent maintained that the October 9, 2018 case notes indicated that the Applicant reported that she hit the phone against the wall two times. The Applicant explained that she never indicated that she broke the phone. It was in perfect condition and her daughter broke the phone by throwing it on the floor.

47The Applicant was provided with an explanation that the case note was based on the Applicant’s report that she hit the phone against the wall twice.

48While the parties may disagree on the facts related to the phone, the Applicant was provided with an explanation as to why the case noted indicated why the Applicant broke the phone. As such, the Respondent has complied with this Term.

Term 14: Can the Respondent indicate whether the verification decision on the CPN database is accessible by police or any other organization? Please clarify who has access to information about the Applicant on the CPIN database?

49The Applicant indicated that she wanted to know what process she had to go through to remove fraudulent information off her record. She does not want inaccurate information about her on the CPIN database.

50The Respondent indicated that only child protection agencies are able to access the CPIN database.

51I find that the Respondent clearly responded to who had access to the Applicant’s information stored on CPIN. As such, the Respondent has complied with this Term.

Term 15: Will the Respondent consider removing the verification finding? If no, please explain why?

52The Respondent indicated that its verification decision stands. The rationale for the decision was provided in response to Term 12.

53The Applicant indicated that the Respondent has not heard her concerns throughout the whole process. She is innocent and feels that the Respondent has trespassed against her. She will go to Court to have the information about her removed form the CPIN database.

54I found that the Respondent has complied with Term 12 above. Its responses in this term equally apply to Term 15.

ORDER

55For the reasons given, I find the Respondent fully met its obligations to provide reasons and explanations for its decisions in accordance with the Agreement and as required under the Act.

56The file is therefore closed.

CONFIDENTIALITY ORDER

57Pursuant 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.