PGS v. Durham Children’s Aid Society, 2021 CFSRB 15

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

PGS Applicant

-and-

Durham Children’s Aid Society Respondent

DECISION

Adjudicator: Daniel McSweeney Date: March 12, 2021 Citation: 2021 CFSRB 15 Indexed As: PGS v Durham Children’s Aid Society (CYFSA s.120)

INTRODUCTION

1This Application consists of issues/concerns raised under sections 120(4)(4) and 120(4) (5) of the Child, Youth and Family Services Act, 2017, SO 2017, C.14, Sched.1 (the “Act”).

2In the Complaint the Applicant alleged that she was not given the opportunity to be heard and represented when decisions affecting her interests were made, or a chance to be heard when she raised concerns about the services she received. In addition, the Applicant alleged that the Respondent failed to provide her with reasons for a decision that affected her interests.

BACKROUND

3The Applicant is the mother of three sons (the “Children”) who live with their father. The Applicant alleged that one of her sons was slapped in the face by his father. The Applicant reported these concerns to the Respondent. The Applicant alleged that the Respondent did not adequately investigate her report and that staff failed to view the photos of her son’s injuries before closing the file. In addition, the Respondent did not inform the Applicant why the file was not opened and why her son was not apprehended.

4The Applicant filed an Internal Complaints Review Panel (ICRP) complaint with the Respondent. She alleged that the ICRP meeting did not resolve her complaint.

5In its Summary Response, the Respondent indicated that the Applicant reported that one of her sons had been slapped by his father. A worker attended the father’s home within 12 hours of the report and interviewed the Children and the father. The Respondent determined that further involvement with the family was not warranted and the file was closed.

6The worker called the Applicant to inform her of the outcome of the investigation. The Applicant was concerned as she wanted the Children interviewed at her home and not in the father’s home. This was not possible as the report of abuse was coded “immediate” and had to be responded to within 12 hours. The Worker informed the Applicant that the Children’s father had been spoken to regarding his use of physical disciple and alternative measures. The Worker also reported that the Applicant’s son did not want further intervention. The Worker confirmed that a closing letter would be sent to the Applicant.

7The Applicant submitted an ICRP Complaint. The Panel was convened on November 16, 2020. At the end of the ICRP meeting, the Applicant indicated that she was disappointed with what she had learned; however, she felt that she had been heard.

THE LAW

8The relevant provisions of the Act are:

s.15(2) 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;

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

4. Allegations that the society has failed to comply with section 15(2).

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

9Rule 24.2 of the CFSRB Rules of Procedure allows for hearings to proceed in writing. Rule 8.1 provided guidance to CFSRB members on how to decide the format of a hearing.

ANALYSIS

10In analysing the Application, I focused on whether the Applicant was heard by the Respondent when she raised concerns regarding the investigation of the allegation of abuse, and whether the Respondent provided the Applicant with adequate reasons for the decisions it made regarding the investigation.

11I have decided that the hearing would proceed in writing as the issues at hand are sufficiently narrow; are fact-based; and do not require additional oral evidence to decide. The Applicant’s concerns were clearly stated in the CFSRB Complaint as well as in the ICRP Complaint. A written approach to deciding this Complaint is the most efficient and expeditious way to address the Applicant’s concerns. In addition, there does not be any prejudice related to fairness and accessibility to both parties of deciding the Complaint in writing.

Was the Applicant Heard?

12The right to be heard has been defined as follows:

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 that her concerns are taken seriously and dealt with thoroughly.

P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 (para 14)

13After having reviewed the material before me, I find that the Applicant has had an opportunity to raise and discuss her concerns with the Respondent on several occasions.

14The Applicant had a conversation with the Worker on June 30, 2021 in which she was able to explain her concerns with the process and outcome of the complaint. The Applicant was provided with an explanation as to why the Children were interviewed outside her home. The Applicant was informed that her son did not want any further investigation. Issues of physical discipline and their alternatives were discussed with the Children’s father.

15The Applicant spoke with the Respondent’s Organizational Effectiveness and Service Relations Supervisor, Privacy Lead (the “Supervisor”) four times on October 27, 2020, and once on November 6, 2020. The Applicant declined a meeting with the service team. In addition, there were numerous e-mails exchanged between the Supervisor and the Applicant.

16The Applicant had an opportunity to have her concerns heard during the ICRP meeting. After the ICRP meeting, the Applicant was provided a letter dated November 27, 2020 which addressed the investigation process; the Respondent’s decision to close the file, and the issue of the photos. This letter explained that viewing the photos would be a duplication as the Worker had already met with and had spoken to the Children. Respondent staff and the ICRP members viewed the photos and found that they were somewhat blurry, did not show scale, were not dated, and did not clearly show the identify of the person being photographed. Staff determined that the photos were difficult to use as evidence and did not supersede the interviews with the Children and the workers own observations.

17The letter also explained that Provincial Standards required that the complaint be investigated within 12 hours and this is why the Children were not interviewed at the Applicant’s home.

18The letter addressed additional issues (lack of police involvement; referral in July; allegations of racism/discrimination; and documents to be added to the Applicant’s file). These issues were not included in the CFRSB complaint and will not be addressed in this decision.

19Based on the evidence before me, I find the Applicant has had several opportunities to have her concerns heard by the Respondent and its staff. In addition, the letter of November 27, 2020 demonstrates that the Applicant’s concerns were heard through the ICRP process. As such, this aspect of the complaint is dismissed.

Was the Applicant Provided with Reasons?

20The Applicant alleged that she was not provided with reasons regarding the Respondent’s investigation and its decision to close the file.

21The Applicant was provided the rationale for the Worker not requiring photos as part of the investigation process and the probative value of the photos; the Respondent’s findings that the incident did not meet the test for removing a child (imminent risk that cannot be mitigated) and the Respondent’s decision to close the file. The Applicant spoke to the Worker as well as the Supervisor on several occasions. The rationale for the Respondent’s decisions was also outlined in detail in the November 27, 2020 letter.

22The Applicant was concerned that the Worker did not advise her why the file was closed. The Summary Response indicated that the Applicant is not a custodial parent and privacy legislation precludes the Respondent from providing the Applicant with a letter giving details of findings related to a third party. The November 27, 2020 letter provides this explanation in writing. In addition to this, I note that the Applicant was verbally informed by the Worker and Supervisor why the file was closed.

23In this case, it appears as if the Applicant is dissatisfied with the Respondent’s decision. This does not mean that the Applicant was not provided with an adequate explanation for the Respondent’s actions and decisions.

Summary

24For the reasons cited above, I find that the Applicant’s concerns were heard, investigated, and further addressed through the ICRP process. The Applicant was provided with verbal and written explanations for the Respondent’s decisions.

DECISION

25The Applicant’s complaint is dismissed in its entirety.

CONFIDENTIALITY ORDER

26Pursuant 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.