MM and RM v. Family and Children’s Services of the Waterloo Region, 2021 CFSRB 89

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MM and RM Applicant

-and-

Family and Children’s Services of the Waterloo Region Respondent

DECISION

Adjudicator: Daniel McSweeney Date: December 15, 2021 Citation: 2021 CFSRB 89 Indexed As: MM and RM v Family and Children’s Services of the Waterloo Region (CYFSA s.120)

INTRODUCTION AND BACKGROUND

1This is an Application (“Complaint”) filed with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

2The Complaint was found eligible pursuant to sections 120(4)2 and 120(4)3 of the Act. It is alleged that the Society has failed to respond to the complainant’s complaint within the timeframe required by regulation; and It is alleged 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.

3The Applicants were foster parents and prospective adoptive parents to a 3-year-old girl of mixed Indigenous and Black race (the “Child”). The Child was placed with the Applicants pursuant to an interprovincial adoption agreement. The Respondent was monitoring the placement on behalf of an out-of-province child protection body. The Applicants’ foster home was closed because of an alleged breach of confidentiality and concerns regarding cultural/racial insensitivity. The Applicants denied the allegations. The Child was removed from the home and returned to her jurisdiction of origin.

4The Applicants allege that the Respondent has not followed the Internal Complaint’s Review Panel (ICRP) process and timelines. The Applicants also asked that the decision to close their foster home be reversed so that the adoption process for the Child can be completed; and that the Child be returned to the Applicants’ family.

5The Applicants and the Respondent engaged in an ICRP process and a hearing was held on July 27, 2021. The Applicants requested that the Respondent provide them with information regarding the decision to close their home; and subsequently their Counsel made a request for additional records. The Applicants requested that the ICRP be put on hold and reconvene once the appropriate disclosures had been finalized. The Applicants were informed by the Chair of the ICRP Panel to contact the Respondent to schedule a follow-up meeting once they receive the Respondent’s disclosure.

6In total, the Applicants made 2 requests for information: one for request for meeting notes; and a second for the remainder of the file. The Applicants were provided with records for 4 meeting dates on August 11, 2021. The Respondent extended the timeline to provide the Applicants with their remaining documents by an additional 90 days as per the provisions in Part X of the Act. A revised deadline for the remaining disclosure was set for December 3, 2021.

7On September 1, 2021, the Applicants’ Counsel communicated with the Respondent indicating that he required additional documents including the following: further detail regarding discussions to close the foster home e.g. minutes, and personal notes of participants; contemporaneous scratch notes for several dates which are held in the Executive Office; and telephone, scratch notes, and e-mail discussions between the Respondent and the other child welfare jurisdiction’s representatives.

8On September 14, 2021, the Respondent replied to the Applicants’ Counsel indicating that there is no disclosure entitlement as part of the ICRP process. The letter indicated that the ICRP complaint was paused for the Applicants to request access to their personal information. The Applicants were provided with some of the information requested and other information such as scratch notes were being processed. The Respondent explained that scratch notes only form part of the Respondent’s official record if a contact log has not been created contemporaneously to the events described in the log. Any handwritten notes taken by attendees other than the note taker (who converts notes into a contact log) are considered transitory in nature and are not required to be kept as they are not the official record.

9The Respondent explained that access requests are different than litigation disclosure. With access requests, a requestor has the right to their personal information, but not the information of others.

10On October 12, 2021, the Applicants’ Counsel communicated with the Respondent indicating that the Respondent was denying important evidence in the ICRP process. Counsel indicated that there was no way of determining whether contact logs were generated from scratch notes contemporaneously and that they were true to the scratch notes. Counsel indicated that the Respondent had failed to provide any information regarding the contacts between the Respondent and the other child welfare authority which he argued was required to have an “effective approach” to the complaint.

11After the CFSRB Application was submitted, the Respondent sent the Applicants a letter indicating that they had not heard back from the Applicants to schedule a follow-up meeting with the ICRP. The letter indicated that the Respondent would not proceed with a follow-up meeting as the Panel felt that it had sufficient information to make recommendations regarding the Applicant’s Complaint.

12In its Summary Response, the Respondent provided an overview and chronology of the ICRP process. It argued that the decision to extend the disclosure to December 3, 2021 fell within the provision of Part X of the Act. Issues related to access to records is the jurisdiction of the Office of the Information and Privacy Commissioner and not the CFSRB.

13The Respondent also argued that the Applicants had not exhausted all the opportunities in the ICRP process before they initiated this current CFSRB Application. As a result of the ICRP Application, the ICRP process was closed.

THE LAW

14Section 120(4) of the Act outlines the matters that may be reviewed by the Board under the section. Section 120(4)2 states:

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

15Section 120(4)3 states:

3. Allegations that the society has vailed to comply with the complaint review procedure or with any other procedural requirement under the Act relating to the review of complaints.

16Sections 56-64 of Ontario Regulation 156/18 address the ICRP process. Section 63 indicates that:

Within 14 days after the meeting, the Internal Complaints Review Panel shall send a written summary of the results of the meeting, including any agreed upon next steps, to the complainant and the executive director of the society to which the complaint was made.

17CRFSRB Rule 22.1 in the CFSRB Rules of Procedure states that:

Within 20 days of determining eligibility, the CFSRB will:

a) make its decision based on the application and the response; or

b) decide to hold a hearing.

18The CFSRB Rules of Procedure provides the CFSRB with the ability to hold hearings orally, in writing, or electronically by teleconference or video-conference. Subsection 8.1 of the Rules state:

In deciding the format of a hearing, the CFSRB will consider:

a) whether it is a fair and accessible process for the parties;

b) the costs and efficiency of the process;

c) the potential for a more expeditious resolution;

d) the convenience of the parties;

e) the consistency with the CFSRB’s mandate;

f) whether the facts or evidence may be agreed upon;

g) the estimated duration of the hearing;

h) whether the issues for hearing are predominantly legal issues;

i) whether oral testimony is likely to be needed;

j) any objections to the format of the hearing.

ANALYSIS

19I considered the format of the hearing. Based on the Application and the documents included along with the Application, and based on the content of the Summary Reply, I find that I have sufficient information before me to decide the determinative questions in this Application: Has the Respondent failed to respond to the complaint within the timeframe required by regulation, and has the Respondent failed to comply with the complaint review procedure or with any other procedural requirements under the Act relating to the review of complaints? I do not need any further written or viva voce evidence on these issues as the documents presented by both parties clearly address the determinative issues. A hearing in writing is the most expeditious, efficient, and convenient way to decide the Application.

20I then turned my mind to whether the Respondent failed to respond to the Applicant’s complaint within the timeframe required by the regulation. I note that the Applicants did not allege that the Respondent failed to engage with them within the appropriate timeframes after they submitted their ICRP complaint. As such, I cannot find that the Respondent did not comply with the timing requirements of the ICRP meeting.

21The Applicants based their Application on the fact that the ICRP process was dragging-on. The documents before me confirm that the ICRP process was placed on hold at the request of the Applicants pending the disclosure of documents requested by the Applicants and their Counsel. The Respondent had until December 3, 2021 to comply with the disclosure request. I find that, by submitting an Application to the CFSRB on November 18, 2021, the Applicants acted precipitously, as the Respondent had until December 3, 2021 to disclose the documents requested by the Applicants.

22I also find that the Respondent was clear that the onus was on the Applicants to inform the ICRP when it was ready to proceed with the process. On August 6, 2021, the ICRP Chair sent the Applicants a letter indicating that they were to contact the Respondent to schedule a follow-up meeting of the ICRP after the records were received. Furthermore, I find that the Applicants did not comply with the direction by the ICRP Chair to contact the Respondent to schedule a follow-up meeting. There is no evidence before me that the Applicants attempted to arrange such a meeting and their requests were put off by the Respondent.

23The Applicants were provided with a letter from the ICRP Panel after they submitted their CFSRB Application. The letter indicated that the Panel did not require any additional information to make its final recommendations. The letter provided the Applicants the ICRP Panel’s responses to the Complaint and its Recommendation that the home remain closed.

24The Applicants and their Counsel were concerned with the ability of the Respondent to meet their disclosure requests. Issues of disclosure and access to documents is the purview of the Office of the Information and Privacy Commissioner (IPC) and does not fall within the jurisdiction of the CFSRB. Any concerns regarding access and disclosure can be raised with the IPC.

25Finally, I note that the Applicants requested that the decision to close the foster home be reversed and the Child be returned to their home pending an adoption decision. The CFSRB does not have the jurisdiction to address these issues pursuant to section 120 of the Act.

DECISION

26For the reasons outlined above, I find that the Respondent has not breached its obligations related to the ICRP timeframes, review procedures, and requirements pursuant to sections 120(4)2 and 3 of the Act.

27The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

28Pursuant 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.