GA v. Simcoe Muskoka Child Youth and Family Services, 2022 CFSRB 46

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

GA

Applicant

-and-

Simcoe Muskoka Child Youth and Family Services

Respondent

DECISION

Adjudicator: Tamara Jordan

Date: September 16, 2022

Citation: 2022 CFSRB 46

Indexed As: GA v Simcoe Muskoka Child Youth and Family Services (CYFSA s.120)

APPEARANCES

GA, Applicant

Self-represented

Simcoe Muskoka Child Youth and Family Services

Karen O’Keefe,

Counsel

Introduction

1This is an Application 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 CFSRB found the Application eligible to proceed under section 120(4)5 of the Act.

3In her Application, the Applicant made complaints about the way the Respondent responded to the Applicant’s concerns about the safety of the Applicant’s 17-year old daughter, AA.

4The CFSRB’s Pre-Hearing Report sets out seven (7) Issues for the Hearing. Specifically, the Applicant alleges that the Respondent has failed to provide her with reasons for decisions related to the following concerns:

1. What is the Society’s role when a parent raises safety concerns about a child who is older than 16 years of age and not in Society care?

2. What factors did the Society consider when it conducted an investigation regarding the Applicant’s daughter [AA] in 2021 and decided to close the file with no follow-up?

3. What factors did the Society consider when it decided to leave [AA] in what the Applicant considered to have been an unsafe place?

4. What services, if any, were offered to [AA] as a result of the Society’s investigation in 2021?

5. If no services were offered to [AA] or to the Applicant in 2021, why not?

6. What steps were taken by the Society in the 2022 investigation into possible “trafficking” of [AA], what conclusions were reached by the investigating worker(s), and what services, if any, were offered to [AA] in that context?

7. Are there any services that the Applicant can access on behalf of her almost 18-year old daughter, [AA], at this time?

5For the following reasons, I find that the Respondent failed to provide the Applicant with sufficient reasons for its decisions related to Issues 1 through 7. I find that notwithstanding that the Respondent felt limited in its ability to provide reasons for some of its decisions due to its concerns about violating Part X of the Act, the Respondent could have and should have provided additional information to the Applicant to help her understand the reasons for its decisions.

THE LAW

6The relevant provisions of the Act are:

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

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

Section 120(7) After reviewing the complaint, the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

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

(e) dismiss the complaint; or

(f) make such other order as may be prescribed.

background

7The Applicant brought safety concerns about AA to the Respondent in July 2021 after AA, then 17 years of age, moved away from the Applicant. The Respondent completed an investigation relating to these concerns, and others, and closed its file by September 2021 (“2021 Investigation”). Issues 1 to 5 relate to the 2021 investigation.

8In her 2022 Application to the CFSRB, the Applicant raised further concerns about AA, including concerns that AA was being “trafficked”. The Applicant had not raised those further concerns directly with the Respondent prior to her Application. As a result of the information disclosed in the Application, the Respondent opened an intake file (“2022 Intake”). Issues 6 and 7 relate to the 2022 Intake.

analysis

Preliminary Issue: Witnesses

9At a June 21, 2022 case management teleconference before the CFSRB, the parties identified the witnesses they intended to call at the Hearing. The Applicant identified that she intended to testify and would call two witnesses and the Respondent’s Legal Counsel identified that the Respondent intended to call two witnesses. The CFSRB’s Case Management Direction related to that teleconference (“CMD”) directed the parties to file witness statements on or before June 30, 2022 that contained a detailed summary of what their witnesses would say if they testified at the Hearing. The Applicant did not file any witness statements. The Respondent filed one witness statement for Society Worker, BK.

10Paragraph 9 of the CMD set out, “[a]t the hearing, the CFSRB member will determine whether any particular witness will be heard based upon relevance and other usual considerations”.

11At the Hearing, the Respondent’s Legal Counsel identified that she would only be calling one witness, Society Worker BK. I found on my review of Society Worker BK’s witness statement and the Contact Logs filed by the Respondent for the Hearing that Society Worker BK’s evidence was relevant to several of the Issues before me at the Hearing.

12At the Hearing, the Applicant noted that her two witnesses included AA’s younger sibling (“AA’s Sibling”) and her mother. When asked whether her mother and AA’s Sibling could provide evidence related to any of the seven Issues at the Hearing, the Applicant explained that these witnesses knew of her concerns about AA, that her mother had seen where AA had been living and AA’s Sibling had been interviewed alone by the Respondent. The Applicant stated that her mother and AA’s Sibling did not have independent information related to any of the seven Issues at the Hearing. Accordingly, I found that while the Applicant’s proposed witnesses may have information related to AA and the Applicant, the Applicant’s proposed witnesses were unable to provide relevant evidence related to any of the Issues at the Hearing and would therefore, not testify.

Preliminary Issue: Respondent’s Concession re Issues 1, 6 and 7

13Issue 1 relates to the Respondent’s role when safety concerns are raised about a youth over 16 years of age who are not already in the Respondent’s care. Issues 6 and 7 relate to the outcome of the 2022 Intake, the services offered to AA at that time, and the services available to the Applicant on behalf of AA.

14At the Hearing, prior to hearing the Applicant’s case, the Respondent’s Legal Counsel stated that the Respondent had not provided reasons to the Applicant’s questions set out in Issues 1, 6 and 7 and it was prepared to do so in writing. Accordingly, I informed the parties that I would make an order that the Respondent provide the Applicant with written reasons to those questions in my Decision and I do so below.

Issues 2, 3, 4 and 5: The Respondent’s Failure to Provide Meaningful Reasons

15The “right to reasons” under the Act is a right to receive a meaningful explanation of decisions that affect one’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8, at paragraph 13, the CFSRB held that:

A parent must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

16Issues 2 and 3 relate to the factors the Respondent considered in the 2021 Investigation and closure of that file without “follow-up”.

17At the Hearing, the Applicant explained that she had limited interaction with the Respondent during the 2021 Investigation. The Applicant recalled providing her concerns to the Respondent during an intake telephone call, speaking with Society Worker BK on or around July 15, 2021 (“July 15 Call”) and meeting with Society Worker BK on July 22, 2021 (“July 22 Meeting”).

18Society Worker BK testified that the July 15 Call occurred as a result of a referral by the police to the Respondent with concerns about the Applicant’s mental health. Society Worker BK stated that her role was to meet with the Applicant to assess the impact, if any, upon the Applicant’s ability to care for her children. As part of Society Worker BK’s Contact Log related to the July 15 Call, Society Worker BK noted that the Applicant informed her that she was “concerned for [AA] and her safety” and documented some of the Applicant’s concerns about AA’s living situation with her father.

19The Applicant and Society Worker BK both testified about the July 22 Meeting and that this was the last communication between them prior to this Application. The Applicant stated that she recalled Society Worker BK spending most of the July 22 Meeting asking the Applicant about her health. The Applicant recalled that Society Worker BK stated that AA was “okay”. The Applicant stated that Society Worker BK did not provide information to help her understand how she made the assessment that AA was “okay”.

20Society Worker BK stated that during the July 22 Meeting she informed the Applicant that she had met privately with AA, as well as AA’s father after the July 15 Call but “could not provide much information at that time because of Part X” (Part X of the Act relates to “Personal Information”). When Society Worker BK was asked what information she provided to the Applicant about how she assessed AA’s safety, Society Worker BK stated that she did not believe that she provided the Applicant with the criteria that she would have used to assess safety and instead had a general conversation with the Applicant related to the initial referral information provided to her and the Applicant’s mental health. When asked whether she explained to the Applicant what “Part X” meant, Society Worker BK testified that she informed the Applicant during the July 22 Meeting that she could not provide more information without consent from AA as she was over the age of 16.

21Society Worker BK’s Contact Log made in relation to the July 22 Meeting does not include any information about what she explained to the Applicant about how she assessed AA’s safety at her father’s home or why she felt she could not provide additional information to the Applicant. There is no mention of “Part X” of the Act.

22Society Worker BK stated that after the July 22 Meeting she called the Applicant once, on or around September 17, 2021, to inform the Applicant of the “Society’s decision” related to the 2021 Investigation and obtain the Applicant’s updated mailing address. Society Worker BK stated that the Applicant’s voice mail was full and she was unable to leave a message. Society Worker BK also stated that she contacted AA’s Sibling on that same date to check in with her and that AA’s Sibling informed her that the family had relocated to Oakville. The Respondent did not file any documentation related to Society Worker BK’s calls to the Applicant and AA’s Sibling after the July 22 Meeting.

23The Applicant stated that she received no follow up from the Respondent after the July 22 Meeting. The Applicant stated that she provided her address and telephone number to Society Worker BK when she met with her. Society Worker BK’s Contact Log related to the July 22 Meeting recorded the Applicant’s address at that time. The Applicant stated that on September 17, 2021 she was still living and working at the address she provided to Society Worker BK and that she moved on November 1, 2021 away from that address.

24I find that minimal efforts were made by the Respondent to inform the Applicant about the outcome of the 2021 Investigation, particularly given that Society Worker BK had the Applicant’s last known address and made only one effort to reach the Applicant by telephone after the July 22 Meeting. Nevertheless, it is undisputed that the Respondent did not speak with the Applicant after the July 22 Meeting and Society Worker BK did not have the opportunity to share the “Society’s decision” related to the 2021 Investigation with the Applicant.

25I also find on the basis of the Contact Log related to the July 22 Meeting and the evidence of Society Worker BK, that very limited information was provided to the Applicant about the Respondent’s determination that AA was safe in her living situation. Even if the Respondent felt constrained in providing some information to the Applicant about its determination due to its interpretation of particular sections under Part X of the Act, the Applicant was entitled to know the factors that the Respondent would consider as part of any investigation involving a youth who was 17 years old so that the Applicant would have had at least some understanding as to how the Respondent concluded that AA was “okay” in her living situation at that time. Moreover, when a children’s aid society asserts that it is prevented from providing certain information to a parent due to legislation, it needs to identify in plain language what that legislation says and how it constrains it.

26Issues 4 and 5 relate to services provided by the Respondent to AA and the Applicant in the 2021 Investigation.

27The Applicant stated that she believed that AA was never offered any services by the Respondent. The Applicant is still concerned that AA is not receiving the services she may need. The Applicant conceded under questioning that she did not ask about services provided to AA during the July 2022 Meeting.

28Society Worker BK states that she could not provide information about any services offered by the Respondent to or received by AA due to “Part X” of the Act. In argument, the Respondent submitted that even acknowledging that a service was offered to AA would, in its view, be a breach of Part X of the Act.

29Despite explanations offered by Society Worker BK at the Hearing as to why she was unable to discuss services offered to or received by AA due to Part X of the Act, or even whether the Respondent did in fact offer any services, there was no evidence adduced to support that the Respondent provided any information to the Applicant related to services to AA prior to the Hearing.

30It is not within the jurisdiction of the CFSRB to determine whether a request by the Applicant for at least some information to help her understand whether or not services were offered to AA is a request that ought to be denied due to the application of particular sections of Part X of the Act. Those determinations are made by the Information and Privacy Commissioner appointed under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, and in accordance with the provisions of Part X.

31However, the Respondent cannot merely cite “Part X” as a reason for not providing information to the Applicant. The Respondent has an obligation to provide meaningful reasons about the substance of an issue, or at least a meaningful explanation as to why the Applicant’s questions about decisions made by the Respondent cannot be provided.

32While it may be the case that the Applicant did not specifically request information about services to AA during the July 22 Meeting and the Respondent did not provide any information to the Applicant about services to AA as it feared doing so would be contrary to certain provisions under Part X of the Act, there was no evidence offered to support that the Respondent explained its position to the Applicant relating to services to AA prior to the Hearing. Accordingly, I find that the Applicant was not provided with any information about services that the Respondent may have offered or that AA may have received, or an explanation as to why the Respondent felt unable to provide that information.

order

33Within 30 days of the date of this Decision, the Respondent shall send the Applicant a letter providing a written response to each of the questions posed in Issues 1 through 7. As part of its response to Issues 2 and 3, the Respondent shall provide information about the way the Respondent assesses safety and risk with a youth who is 17 years old and what factors would lead the Respondent to close a file and not verify concerns related to AA’s living situation.

34In relation to Issues 2 through 6, where the Respondent takes the position that it is limited in its ability to respond in part or fully to the questions posed in those Issues due to Part X of the Act, in responding to each of those questions the Respondent shall: (a) set out the specific section(s) of the Act that, in its view, impact(s) its ability to respond to the question; and (b) provide an explanation in plain language to the Applicant about how, in its view, the section(s) apply in relation to the Respondent’s inability to provide a partial or full answer to the question.

confidentiality order

35Pursuant 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.