AF v. Kawartha Haliburton Children’s Aid Society, 2021 CFSRB 25

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AF

Applicant

-and-

Kawartha Haliburton Children’s Aid Society

Respondent

DECISION

Adjudicator: Daniel McSweeney

Date: April 09, 2021

Citation: 2021 CFSRB 25

Indexed As: AF v Kawartha Haliburton Children’s Aid Society (CYFSA s.120)

APPEARANCES

AF, Applicant

M. Kathleen Kinch, Counsel

Kawartha Haliburton Children’s Aid Society, Respondent

Stephen Martyn, Counsel

INTRODUCTION

1The Applicant and the Kawartha Haliburton Children’s Aid Society (the Respondent) entered into a Settlement Agreement (the “Agreement”) during a mediation held on February 8, 2021, providing for a full settlement of all issues raised in the Application, received on November 30, 2020 by the Child and Family Services Review Board (the “CFSRB”).

2The Agreement consisted of 5 Terms containing questions which the Respondent agreed to answer. The Settlement Agreement had an implementation date of March 15, 2021, and a non-compliance date of March 22, 2021.

3The Respondent sent the Applicant a letter on March 8, 2021 with its responses to the Terms. The Applicant provided the CFSRB with notice of non-compliance dated March 19, 2021.

4In a Case Management Direction (CMD) dated March 19, 2021, the parties were informed of the CFSRB’s intention to decide the non-compliance matter in writing pursuant to Rule 8.1 of the CFSRB Rules of Procedure. It was decided that a review in writing would be the most efficient use of resources given the nature of the non-compliance allegations.

5The Respondent was directed to provide a written response to the non-compliance allegations asserted in the Applicant’s letter of March 19, 2021. The Respondent provided responses on April 6, 2021.

6In accordance with the CFSRB’s procedures, I will determine whether the Society has complied with the Agreement.

DECISION

7After reviewing the arguments provided in the parties’ submissions, 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”).

8The reasons for my findings are as follows.

ANALYSIS

The Law

9The 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.

10Section 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

11The 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.

12In 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.

Written Review of Terms of Settlement

Term 1: The Respondent shall consider reversing the positive verification

decision through this mediation process.

13In its response, the Respondent maintained its original verification decision and indicated that it would not be reversing he verification of child protection concerns related to the incident in question.

14The Applicant indicated that there was nothing provided in the Respondent’s response to suggest that it considered reversing the verification decision.

15In its response of April 6, 2021, the Respondent indicated that it has reviewed the verification again. The Respondent stands by the decision which was based on information gathered during the investigation.

16The Response clearly indicates that the Respondent reviewed the verification decision for the 4^th time as a result of the mediation process. Based on the evidence before it, the Respondent has decided to uphold its verification decision.

17Based on the response, I find that the Respondent has complied with Term 1 of the Settlement Agreement as it reviewed the verification decision as a result of the mediation process.

Term 2: The Applicant is unclear as the rationale for the positive verification decision. The Respondent shall provide the Applicant with a detailed rationale for the verification decision, including the weight assigned to the various accounts and evidence considered which resulted in a positive verification.

18The Respondent indicated that the verification decision was based on all the information gathered during the investigation (interviews with the victim and a number of witnesses to the event). The event was described by the victim and witnesses in a manner that was consistent and led to credibility of the allegation that he Applicant’s interaction with the victim was excessive.

19The Respondent indicated that the Applicant has been provided with the file material that he is entitled to pursuant to Part X of the Act. In fact, the Respondent indicated that it has gone beyond the requirements of Part X. If the Applicant believes that the redactions are excessive, his concerns can be referred to the Office of the Information and Privacy Commissioner (IPC).

20The Applicant alleged that the disclosure received from the Respondent was heavily redacted and contained none of the information requested in the Settlement Agreement. It argued that relying on “disclosure” provided before the Applicant made his complaint to the CFSRB is not sufficient to fulfil the Terms of the Settlement.

21The Applicant identified the following concerns with each sub-section of Term 2.

a) The Respondent shall indicate what adults were interviewed as part of the verification process? Were Ms. Lefebvre, Matt Smith, and other teachers interviewed during the verification process? If no, the Respondent shall explain why staff chose not to gather evidence from other adults. If yes, the Respondent shall explain what weight was afforded to each adult’s testimony and why.

22The Applicant indicated that the Respondent was supposed to identify which adults were interviewed as part of the verification process. The Respondent failed to do so.

b) The Principal did not seem to be concerned with the Applicant’s behaviour on the day of the alleged incident. In fact, the Principal did not report to the Respondent. The Respondent shall provide the Applicant with a detailed summary of the Principal’s statements to the Respondent and how these statements affected the verification decision.

23The Applicant indicated that the Respondent did not provide any details with respect to the Principal’s statements, nor did it provide any information on the impact these statements had on the positive verification decision.

c) The child involved in the complaint has made inconsistent statements regarding the hand holding issue. The Respondent shall explain how this inconsistency has been factored into the verification decision.

24The Applicant indicated that the Respondent did not provide an explanation and denied any inconsistency.

d) The evidence gathered from the child witnesses was heavily redacted. The Respondent shall provide the Applicant with a detailed explanation of what each child stated, and what weight was placed on the children’s evidence in making the verification decision.

25The Applicant indicated that the Respondent failed to provide a detailed explanation of the statements of each child witness and the weight assigned to each statement.

e) Was taking the child to the office using a hand hold considered by the Respondent as a normal practice? If no, the Respondent shall explain why not. If yes, the Respondent shall explain what was the concern with the way that the child was taken to the office.

26The Applicant indicated that the Respondent failed to provide an adequate explanation regarding behavioural concern which led to the positive verification decision. What factual findings made by the Respondent supported the conclusion that the Applicant used inappropriate force.

27I concur with the Respondent that, under Part X of the Act, third party information cannot be disclosed without consent or a Court Order. This includes the names of witnesses and any information that would identify them, including the information from the principal and all other witnesses. In this case, this would require the consent of the adults involved, as well as the consent of the victim and the other children’s parents. If the Applicant has concerns with redactions in the disclosure, he is free to raise these with the IPC, or seek an Order from the Court.

28The Applicant is seeking information regarding the rationale for the verification decision, including the weight that was placed on the various witness statements and evidence. I find that the Respondent has addressed these issues in its responses. For example, the Respondent:

• Commented on the consistency in the reports from the victim and the witnesses which led to a positive credibility finding;

• Commented on the fact that the Principal was not a witness to the Applicant and the victim entering the office;

• Commented that the issue was the context of the hand hold – why it was applied, and the force used during the entire incident; and

• Indicated that the evidence gathered met the threshold for the positive verification.

29The Respondent has been clear that the positive verification decision was based on consistent and credible witness statements. The Respondent has also indicated that it was concerned with the context of the hand hold and the level of force used during the entire incident. Based on this, I find that the Applicant was provided with sufficient information by the Respondent to assess the Respondent’s rationale for its verification decision.

30The request for third-party information is outside of the CFSRB’s jurisdiction. The Applicant is free to request a review of the Respondent’s disclosure by the IPC.

Term 3: The Applicant feels that the verification decision may have been influenced by his complaints regarding the behaviour of staff. The Respondent shall outline what, if any, processes or procedures were implemented to ensure that the final verification decision was free from potential bias associated with the Applicant’s complaints about the Respondent’s staff’s behaviour at 2 meetings.

31The Respondent indicated that the decision to verify the protection concerns was made prior to the Applicant’s complaints regarding staff and therefore had no bearing on the verification decision.

32The Applicant alleged that the Respondent did not outline any processes or procedures they used to avoid bias. In addition, any later refusals to reverse the positive verification could be the result of bias as decisions were made after the Applicant’s complaints.

33The Respondent has maintained that verification decision was made before the Applicant’s complaint and was based on the independent evidence gathered from the victim and the witnesses. I have no evidence before me that there were steps between a verification decision and a “final” verification decision, or that the final decision was made after the Applicant’s complaint. The Respondent made one verification decision before the Applicant’s complaints regarding the behaviour or Respondent staff. As such, there would be no need for processes or procedures to ensure that the decision was free from potential bias associated with the Applicant’s complaints.

34I find that the Respondent has complied with Term 3 of the Settlement Agreement.

Terms 4 & 5:

The ICRP process is still outstanding. The Respondent shall consider having an external child welfare agency to carry out the ICRP process. If yes, which society? If no, the Respondent shall provide a rationale as to why. If the Respondent agrees to transfer the ICRP process to an external agency, it shall endeavour to initiate the ICRP process within 4 weeks of the completion of the CFSRB complaint process.

If the ICRP process is to remain with the Respondent agency, the Respondent shall provide a plan to ensure that the process is fair and free from bias, including identifying the decision-makers in advance and providing an index and documents binder of all materials to be reviewed by the decision-makers (these documents will be disclosed in redacted form to the decision-makers and the Applicant, similar to the documents previously disclosed to the Applicant under Part X of the Child, Youth and Family Services Act), which the Applicant will have the opportunity to supplement before the review is conducted.

35The Respondent indicated that the Applicant’s complaint did not meet the threshold for an ICRP and indicated that the Applicant is free to re-apply for an ICRP if he sees fit. Once the application is received, the Respondent will determine if it meets the threshold and appropriate steps will be taken with the timelines associated with the process. The internal process for an ICRP is led by the Executive Director and the panel includes a member of the community along with a supervisor who has had no involvement with the case or complaint process.

36The issue of whether an external agency could be engaged to complete the ICRP process will be discussed once the Respondent receives the application. The Respondent; however, cannot state firmly that another agency would agree to take the matter on as there are no established protocols to address this issue.

37The Applicant indicated that the Respondent did not outline any commitment to seeking an external child welfare agency to conduct the review.

38I find that the question of seeking an external child welfare agency to take over the ICRP process is premature at this time, as the Applicant has not submitted an ICRP application and the Respondent has not deemed that the application meets the threshold for holding one. Despite this, the Respondent indicated that the internal ICRP panel would be made up of individuals who are not associated with the verification decision which would mitigate any concerns with bias.

39The Respondent stated that it could not confirm that another agency would agree to take the ICRP process on as there are no established protocols between agencies that address this issue. As such, the Respondent could not guarantee that another agency would assume responsibility for an ICRP.

40Based on the responses, I find that the Respondent has provided the Applicant with the responses that it can so far. The Applicant’s concerns are premature as he has not submitted an ICRP application. In addition, the Respondent would have to verify if an external agency would have jurisdiction regarding an ICRP based on sections 56-64 in Ontario Regulation 156/18.

41For these reasons, I find that the Respondent has provided as fulsome an answer as it could given the current status of any ICRP application.

ORDER

42For 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.

43The file is therefore closed.

CONFIDENTIALITY ORDER

44Pursuant 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.