TM v Children’s Aid Society of Hamilton, 2020 CFSRB 28

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

TM

Applicant

-and-

Children’s Aid Society of Hamilton

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: March 27, 2020

Citation: 2020 CFSRB 28

Indexed As: TM v Children’s Aid Society of Hamilton (CYFSA s.120)

APPEARANCES

TM, Applicant

Self-Represented

Children’s Aid Society of Hamilton, Respondent

Ali Mirza, Counsel

Janice Kinrade, Intake Services Supervisor

INTRODUCTION

1The Applicant and the Children’s Aid Society of Hamilton (the “Society”) entered into a Settlement Agreement (the “Agreement”) during a mediation held on December 17, 2019, providing for a full settlement of all issues raised in the Application, received on September 3, 2019, by the Child and Family Services Review Board (the “CFSRB”).

2The Agreement contained 11 Terms which contained questions which the Society agreed to answer. The parties agreed to an implementation date of January 27, 2020, and a non-compliance date of February 3, 2020.

3The Society sent the Applicant a letter on January 23, 2020 which contained its responses to the Agreement. The Applicant sent an e-mail alleging non-compliance on February 3, 2020. She indicated that she was not satisfied with the reasons given by the Society. She indicated that she did not receive a direct yes or no answer to questions 1 and 11.

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 March 27, 2020.

DECISION

5After reviewing the materials submitted by the parties, and hearing their arguments, I find that the Society 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”) for terms: 1, 3, 4, 8, 9, 10, and 11. The Society was partially compliant in is responses for Terms 2, 5, and 7. The Society is directed to provide additional responses for these terms as outlined below.

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 to discuss. I clarified the CFSRB’s role and jurisdiction in relation to non-compliance allegations for complaints against societies. I also explained that there is no appeal of the CFSRB’s non-compliance decision and that the Applicant’s agreement to a full settlement on December 17, 2019 meant that she did not have access to move to a CFSRB hearing on the merits of her Application.

12The Applicant conceded that there were no concerns with Term 6.

Terms of the Agreement

Term 1: Will the complaint, investigation, and findings of the suspected child abuse allegations against Mr. Moore be kept in an accessible child welfare database?

a) If yes, how long will this record be kept?

b) Who will have access to this information?

c) If no, please explain why?

13The Applicant argued that the Society had not provided her with a yes or no answer in reference to the inclusion of the principal’s name in the record.

14The Society indicated that the response did not specifically indicate yes or no; however, the Society’s position was implied in the affirmative. The Society explained that the principal’s name would be included on the Ontario Child Welfare database and that it would be kept indefinitely. The Society explained that only those persons who have a relevant role and responsibility to access the information will have access to the file. Other than child welfare staff from across Ontario, no one can access to the investigation and findings without a court order.

15I find that the was clear that the complaint, investigation and findings would be kept indefinitely on the database which is accessible only to child welfare staff who have a reason to access the particular record. This necessarily would include the name of the principal who was the person alleged to have harmed the Applicant’s son. As such, I find that the Society has complied with Term 1 of the Agreement.

Term 2: Why is my name fully spelled out in the investigation record and report? (see CPIN Notes disclosed to the Applicant as follows: Intake Notes # 1, 7, 11, 37; Investigative Notes # 1, 7, 10, 11, 12, 17, 34; and Investigation Case Information # 1 of 37).

16The Applicant wanted clarification of whether she was classified or recorded in the CPIN record as a referent or a parent. She was concerned that she was classified as a referent. She indicated that it was her understanding that referents’ names are usually anonymized.

17The Society indicated that the Applicant was considered both a referent as well as a parent of a child. Referents’ names are not regularly anonymized. If they want their names to be anonymized, referents need to make an application to a child welfare agency who then will consider the request. The Society indicated that the identification of parents of alleged victims is a required practice by the Society.

18I find that the Society has provide a partial response to this term. The Society’s response would be enhanced by providing a reference to the “required practice” of identifying the names of parents of alleged victims in records.

19For these reasons, I find that the Society has partially complied with Term 2.

Term 3: If my name is already in the records of the investigation, can my name be anonymized?

20The Applicant indicated that she was unclear whether she was considered a parent or a referent in the Society’s records.

21The Society explained that the Applicant was considered both a parent and a referent. As a parent, her name cannot be anonymized. In addition, the Society explained that its records have already been produced and cannot be edited or changed.

22I find the Society’s responded adequately to Term 3 as it clearly explained that parents’ names cannot be anonymized. This response will be further clarified by the Society’s response in the first direction below.

23As such, the Society was not in breach Term 3.

Term 4: Please explain the inconsistency between Ms. Leroux’s statement that the investigation would take 45 days and the verification decision that was issued in approximately two weeks?

24The Applicant was concerned that the Society’s verification process took only 14 days, and this is why it concluded that the allegations of abuse were not verified.

25The Society indicated that the standard time for an investigation is 45 days. If an investigation takes more than 45 days, the investigator will require approval from her/his supervisor. The fact that an investigation takes less than 45 days does not affect the quality and thoroughness of an investigation and whether or not an allegation is verified.

26While the Society’s response did not directly address the inconsistency in Ms. Leroux’s statements, the Society did explain that there is no correlation between the time it takes to complete an investigation and whether a finding of harm is verified or not.

27As such, I find that the Society complied with Term 4.

Term 5: Please explain why I was specifically asked for my driver’s license and why a photo of my license was taken by Ms. Leroux? a) Is this process customary for a referent?

28The Applicant was concerned that she had been requested to provide the worker specifically with her driver’s licence, and that a photo of the license was taken after she was asked questions.

29The Society indicated that it was customary to take photo identification of referents to ensure that the person is who she says she is; however, that this practice is discretionary. The Society indicated that the photo was taken with the worker’s agency phone. Counsel did not know whether the photo was placed on the investigation record or simply referred to in a note that the Applicant’s identity had been verified.

30The Society’s response indicated that there was some discretion in the practice of asking for and verifying identification. The Society’s response did not address the question of why the Applicant was required to provide her driver’s license in particular. In addition, the Society’s oral responses at the non-compliance teleconference raised additional questions as to why the worker used her discretion to require identification, and how the photo of the identification was recorded in the Society’s records.

31For these reasons I find that the Society did not fully comply with Term 5 of the Settlement Agreement.

Term 7: Please explain why there is mention of my past involvement with a Society in 2017 in relation to this investigation?

32The Applicant questioned the rationale for the Society’s statement: “information is used to fully understand the big picture” in its response to Term 7. She wanted to know what the “big picture” was. She did not understand the relevance of her past involvement with the agency on its investigation of alleged harm done to her son by the principal.

33The Society responded that the big picture was provided to the Applicant in the Summary Reply to the Application dated September 13, 2019. The Summary Reply referred to the history of everyone involved, including the Applicant. The Society indicated that it was mandated to include looking at the past history of everyone associated with an allegation. When asked to explain where the mandate came from, the Society, counsel indicated that he did not have this information available off hand.

34I find that the response could have better addressed the relevance of the Applicant’s past history of involvement with the Society on the current allegations. In addition, I find that the Applicant’s understanding of the need to look into her past history could be enhanced through a clear statement of where the Society’s mandate comes from.

35For the reasons outlined above, I find that the Society has partially responded to this Term.

Term 8: On page 5 of the Summary Reply it states: “the child tried crawling in

between his legs and the door frame”. Does the Society accept the principal’s version of the events?

a) How can the child hit his head on the door frame if he was crawling between the principal’s legs?

36The Applicant wanted the Society to explain why the child had to go between the principal’s legs and the door frame or what was the child’s intention?

37The Society explained that it was the investigator’s understanding that the child crawled between the principal’s leg and the door frame. There was no evidence to suggest ha the principal’s actions were responsible for the child hitting his head. In addition, the Summary Reply provided the Applicant with significant details and evidence from the investigation.

38I find that the Society provided a response as to the child’s crawling between the principal and the door fame. It also clearly indicated that there was no evidence that there was no intention or actions taken to harm the child which coincided with the principal’s version of events.

39I find that the Society complied with Term 8 of the Settlement.

Term 9: As a parent of a child who was at risk of harm, do I have the right to

Dispute the Society’s verification decision?

a) If no, why?

b) If yes, what processes are available to me to dispute a verification

decision?

40The Applicant was concerned that, as a parent, she was unable to appeal a verification decision, including to the CFSRB.

41The Society indicated that a referent has no right to dispute or appeal a society’s verification decision. The Applicant then asked if she had a right to appeal a verification decision by a society to the CFSRB. I explained that the CFSRB does not have jurisdiction to overturn a decision of a society under the Act except in narrow circumstances such as adoption refusals and removals of a child from a foster home.

42For these reasons, I find that the Society has complied fully with Term 9 of the Settlement Agreement.

Term 10: I sent e-mails in response to my queries to four (4) Society staff (J. Kinrade, Emilia Leroux, Kevin Mescal, Ms. Chardola). Please explain why I did not have one point person assigned to my report about my child?

a) Janice K and Ms. Chardola did not respond to my e-mail, please explain why?

b) Please explain why Kevin Mescal indicated in his e-mail (2nd last page of documents attached to my application) that he preferred to speak with me rather than providing written answers to my e-mail?

43The Applicant was concerned that she did not have a point person designated after the file was closed and after Ms. Leroux went on maternity leave. She was concerned that she was not provided with the name of another contact once to follow-up with once she received the documentation from the Society.

44The Society explained that the Applicant was allocated a worker assigned to her file (Ms. Leroux) but that once the file was closed, there would be no need for a point person. The Society also noted that Ms. Leroux attempted to speak with the Applicant but that the Applicant did not wish to speak to Ms. Leroux. The Society explained that Ms. Kinrade was out of the office and that her covering supervisor was Mr. Mescal. There was no need for Ms. Chardola to speak with the Applicant as Mr. Mescal was handling the Applicant’s inquiries.

45I find that the Society provided an explanation regarding the assignment of workers to the Applicant in its response. It also provided an explanation as to why Ms. Kinrade and Ms. Chardola did not return the Applicant’s calls. The matter was being handled by Mr. Mescal.

46For these reasons, I find that the Society has fully complied with Term 10.

Term 11: In the future, if there was a database search for my son’s name, would the investigation report result appear?

a) Would my name be associated with the report in this case?

47This term raised issues of whether or not the Applicant was classified as a referent or a parent. The Applicant alleged that she did not get a response as to why her name would appear in the investigation report.

48The Society explained that the Applicant’s name would be included in the report as her son was named as a participant in the file and because she is the parent of the child. A search of the Applicant’s name in CPIN would not bring up the investigation as she was not identified as a participant in the file. The Society also explained that the fact that the Applicant’s son is a minor has no bearing on whether or not his name is accessible through a CPIN search.

49I find that the Society fully complied with this term as it explained the results of a search for the Applicant’s and her son’s name on CPIN.

ORDER

50For the reasons given, I find the Society has partially met its obligations to provide reasons and explanations for its decisions in accordance with the Agreement and as required under the Act.

51I direct the Society to provide the Applicant the following on or before April 24, 2020:

• A reference which cites that it is a required practice of the Society to identify parents of alleged victims, and how this provision relates to the Applicant’s particular situation (Term 2)

• An explanation as to why the worker used her discretion to require identification from the Applicant. Why the worker requested the Applicant’s driver’s license in particular? What form was the photo of the driver’s license recorded or referred to in the file? How the original photo has been disposed of? (Term 5)

• A reference which cites the mandate of a society to look at the history of a referent or parent in any investigation. In addition, provide the Applicant with a statement as to what the relevance of her past complaint of alleged abuse had on the current investigation e.g. was any weight placed on this in assessing the allegations of harm by the principal? (Term 7)

52I will not close the file until I have received the Society’s responses to the questions identified above.

CONFIDENTIALITY ORDER

53Pursuant 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.