NC v. Native Child and Family Services, 2022 CFSRB 53

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

NC Applicant

-and-

Native Child and Family Services Respondent

DECISION

Adjudicator: Daniel McSweeney Date: October 28, 2022 Citation: 2022 CFSRB 53 Indexed As: NC v Native Child and Family Services (CYFSA s.120)

APPEARANCES

NC Applicant Self-represented

Native Child and Family Services, Respondent Rebecca Kingdon, Counsel

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 for review under sections 120(4) 4 and 120(4) 5 of the Act: The Applicant 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 is receiving; and the society is alleged to have failed to provide the Applicant with reasons for a decision that affected her interests.

3The Applicant is the mother of a daughter aged 16 (the “Child”).

4The Applicant shares custody with the Child’s father. The Child attended the Applicant’s home in March of 2022 and decided not to return to her father’s home. During this time, the Applicant identified several issues with the Child’s behaviours including concerns regarding the Child’s school performance. Given that the Child remained with her, the Applicant wanted to register the Child at a school closer to her home; however, this was not possible as the school had been informed that the Child’s father had custody.

5Subsequent to reports by the Child’s father and the Applicant’s primary care doctor, the Applicant and her daughter were visited by Child and Family Wellbeing Workers from Native Child and Family Services (NCFS). One of the Workers, Annmarie Ferguson, informed the Applicant that the Child was safe in her home and that NCFS would be closing the file. Ms. Ferguson indicated that any issues related to the Child’s attendance at school needed to be negotiated with the Child’s father as the Worker was informed that the Child’s father had custody.

6The parties did not agree to mediate the matter. In advance of the hearing date, I issued a Case Management Direction clarifying the CFSRB’s jurisdiction to address complaints under section 120 of the Act. In addition, I clarified and narrowed the issues based on the Applicant’s previous complaint to the CFSRB and based on the provisions of CFSRB Rule 24.4 (Rules of Procedure).

7I decided that the hearing would focus on the following 8 Issues/Concerns:

1. The Applicant alleges that her concerns regarding the Child’s education and school performance after December 22, 2020 (date of previous CFSRB Application) were not heard by Respondent staff;

2. The Applicant alleges that her concerns regarding her inability to register the Child in school because Respondent staff interaction with the school (statements, and provision of documents) were not heard by Respondent staff;

3. The Applicant alleges that her concerns regarding the Child’s physical and mental health and safety while in the care of her father since her previous Application were not heard by Respondent staff (e.g. Child’s fear of her father; dental health; need for counselling);

4. The Applicant alleges that Respondent staff did not hear her concerns regarding difficulties obtaining mental health supports for the Child;

5. The Applicant alleges that her requests for services and supports (parenting, counselling) since her last Application in relation to past abuse were not heard by Respondent staff;

6. The Applicant alleges she was not provided with reasons by Respondent staff as to why her request to transfer the file to another child welfare agency was denied;

7. The Applicant alleges that she was not provided with reasons in writing by Respondent staff for closing the file (March of 2022) and why concerns were not verified; and

8. The Applicant alleges she was not provided with records in hard copy when she requested them; and she was not provided with the verification procedure in writing.

8The Applicant and Child and Family Wellbeing Worker, Annmarie Ferguson, were the only witnesses during the hearing. The hearing was held via Zoom, and the Applicant was provided access to a computer terminal at Tribunals Ontario offices, as well as staff support through the CFSRB.

THE LAW

9Section 120 of the Act provides that, if a person has “a complaint in respect of a service sought or received from a society [and the complaint] relates to a matter described in subsection (4), the person who sought or received the service may decide” to make a complaint to either the society or the Child and Family Services Review Board (“CFSRB”).

10Section 15(2) of the Act ensures 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.”

ANALYSIS

11I considered the oral and documentary evidence related to each of the 8 Issues/Concerns.

12Before moving on in specific comments about each Issue/Concern, I would like to note that overall, the parties did not achieve a common understanding regarding what constituted child protection concerns and the threshold for a child protection agency to intervene. As such, the Applicant felt that NCFS workers did not hear her concerns, while NCFS workers found that the Applicant’s concerns did not rise to a level that required NCFS intervention.

13The evidence before me also confirmed that the Applicant sought to involve the Respondent in issues that have been addressed in Children’s Law Reform Act (CLRA) proceedings rather than returning to Court to address these issues. NCFS took the position that the Applicant’s goals of having more contact and time with the Child; and a greater role in decision-making around the Child were clearly within the purview of the Court, and not a child welfare concern. Again, this is evidence that the Applicant may not have clearly understood NCFS’s child protection focus and the fine lines between child protection and CLRA issues. As a result, the Applicant became frustrated with what appeared to her to be the Respondent’s failure to act.

14Finally, I noted that the Applicant appeared to have interpersonal challenges with Ms. Ferguson as well as with NCFS Counsel which may have contributed to the Applicant’s feeling that she was not heard or provided adequate reasons by NCFS staff.

Issues 1 and 2: Concerns with the Child’s educational performance and concerns relate to school registration

15The Applicant testified that someone from NCFS had submitted a written or typed letter to her Child’s previous school (in 2015) claiming that the Child’s father had full custody of the Child. The Applicant indicated that no one had informed her about the letter. This prevented the Applicant from registering her daughter in a different high school as well as from accessing information regarding the Child’s school performance and the implementation of an Individual Education Plan. In addition, the Applicant was concerned that the Child was not progressing in her education. The Applicant testified that she raised these concerns with NCFS Workers.

16Ms. Ferguson testified that when the file was opened in March of 2022, she had no contact with the school and that no one from the school had contacted NCFS with any concerns with the Child’s academic progress. Ms. Ferguson indicated to the Applicant that, if she wanted information regarding the Child, she could call the school. In addition, NCFS was not able to assist the Applicant with registering the Child in a different high school as the 2017 Final Court Order indicated that the Applicant needed to communicate and negotiate this issue with the Child’s father. The Worker was familiar with a letter dated 2015 which pre-dated the final Court Order of 2017. The Worker felt that she could not involve herself in this issue despite raising her concerns with the Child’s father.

17I reviewed the Final Court Order dated June 23, 2017, which stated: “The parties are to consult each other in writing and respond in writing with respect to all important decisions regarding the child. If there is no agreement, then the father decides.” While the Order does not provide one parent custody, it is clear to me that the Child’s father has been granted decision-making power on important issues should the parents not be able to come to an agreement on the issues. The Child’s education is an important issue on which the parents did not agree.

18Based on the information before me, I find that, while the Respondent heard the Applicant’s concerns regarding the Child’s education performance, her lack of knowledge regarding the Child’s academic progress, and her inability to register the Child in a different school; however, these issues were more appropriately addressed through CLRA proceedings. It was not up to Respondent staff to enforce a provision in the 2017 Final Order, or to intervene as the issues did not rise to the level of a child protection concern.

Issue 3: Applicant’s concerns regarding the physical and mental health and safety of the Child while in the care of her father.

19The Applicant testified that she had noticed changes in the Child since she has lived with her father including: the Child’s internet use; the alleged isolation of the Child; and the Applicant’s feeling that the Child could raise concerns with her mother. The Applicant indicated that she had not been provided with information regarding the ongoing health and wellbeing of the Child and this was stressful for her. The Applicant testified that she raised these concerns with Ms. Ferguson, but that NCFS staff were not fully informed of the historical context of the relationship between the Child and her father.

20Ms. Ferguson testified that she was aware that the Applicant was frustrated about not being provided with information about the Child from the school and the Child’s father; however, this was an issue that needed to be addressed by the Court. NCFS’s focus regarding the opening was on whether the Child was safe with her mother and father.

21Ms. Ferguson testified that, as part of the investigation, she met with the Child separately and allowed her the space to talk. She was aware of the Applicant’s concerns regarding the Child’s mental health but noted that the Child did not display any mental health concerns, nor did the Child disclose any health and safety concerns. As such, Ms. Ferguson found that there were no child protection concerns with the Child.

22When asked if she raised any questions about the Child’s safety with the Child, Ms. Ferguson testified that she did not raise any questions directly with the Child. The Child indicated that she did not need any supports to call her dad and that she intended to call him despite not wanting to leave her mother’s home at that time.

23Ms. Ferguson also indicated that the Child was 15 years old at the time of NCFS’s involvement, and therefore any discussions or interactions between NCFS staff and the Child were covered by privacy legislation (Part X of the Act) and could not be shared with the Applicant.

24The CFSRB cannot comment on the thoroughness of any child protection investigation. The evidence before me is that Ms. Ferguson heard the Applicant’s concerns regarding the health and safety of the Child; she assessed the Child based on NCFS’s own criteria; and made a finding that the concerns identified by the Applicant were not verified. As such, I find that the Applicant’s concerns were heard by NCFS.

Issue 4: Difficulties obtaining mental health supports for the Child

25The Applicant indicated that she was frustrated by NCFS’s lack of support to broker mental health supports for the Child.

26Ms. Ferguson testified that on at least two occasions she met with the Child, she did not observe any mental health concerns. The Child also did not express that she required any mental health supports.

27Given the Child was 15 years old, Ms. Ferguson indicated that the Child would have had to consent to receiving services and that NCFS could not report to the Applicant that the Child was accessing any services given the privacy provisions in Part X of the Act.

28The Applicant’s concerns did not coincide with Ms. Ferguson’s assessment of the Child’s mental health; however, this does not mean that the concerns were not heard. Based on the information before me, I find that Ms. Ferguson heard the Applicant’s concerns regarding the mental health of the Child.

29Furthermore, I note that, even if mental health concerns were identified, NCFS could not have shared this information with the Applicant without the Child’s consent given the privacy provisions in the Act.

Issue 5: Requests for services and supports not heard by Respondent staff

30The Applicant alleged that she was not offered any parenting or mental health supports in writing by NCFS staff despite her indicating that she required additional supports. The Applicant, however, testified that Ms. Ferguson told her that the Applicant could seek the supports of the Holistic Program. The Applicant indicated that no one from NCFS or the Holistic Program had followed up with her, but that she was informed that a program she had been referred to was not available.

31Ms. Ferguson testified that she referred the Applicant to the Holistic Program but that it was up to the Applicant to follow-through. NCFS did not require that a client have an open child protection file to access services. The Applicant continues to have access to Holistic Services.

32This situation illustrates the communication challenges between the Applicant and the Respondent. The Applicant expected that someone from NCFS would follow-up on the referral to Holistic Services, and the Respondent’s perspective was that it was the Applicant’s responsibility to follow-up on services should she require them. The Applicant is an articulate individual who can express her needs and wants and is able to escalate issues if she is not satisfied with results as evidenced by her 2 Complaints to the CFSRB. The Applicant did not take it upon herself to follow-up in obtaining parenting or counselling supports from NCFS. This is her responsibility given that the protection file was closed, and she was not provided with ongoing services.

33Based on the testimony, I find that the Applicant’s request for ongoing supports was heard by the Respondent; however, NCFS staff could have been clearer regarding the expectations for following-up on such a referral.

Issue 6: Failure to provide reasons for refusal to transfer the file

34The Applicant testified that she was not provided with an explanation as to why NCFS refused to transfer the file to another child protection agency. The Applicant maintained that she had a right to choose whichever child protection agency she wanted service from but that she needed to be discharged from NCFS.

35Ms. Ferguson testified that she had been informed that the Applicant had called the Children’s Aid Society of Toronto (CAST) with a child protection concern and requested that the file not be directed to NCFS. CAST staff consulted with Catholic Children’s Aid Society of Toronto who declined to accept the referral given that the last child protection opening was with NCFS. Ms. Ferguson also indicated that both parents and the Child identified as Indigenous and therefore it was more appropriate for the file to remain with NCFS.

36I find that the Applicant was provided with reasons verbally by the Respondent; however, the Applicant does not agree with the reasons provided.

Issues 7 and 8: No written reasons for closing the I and for non-verification decision and failure to be provided with records in hard copy and NCFS’s verification procedure in writing.

37The Applicant testified that she was not involved in the verification process and did not receive any documents in writing regarding the verification. When asked if she asked NCFS staff why her concerns were not verified, the Applicant indicated that she had not asked. She spoke with Respondent Counsel recently and the issue did not come up. The Applicant indicated that did not know she could ask NCFS for reasons.

38The Applicant testified that she was not told exactly what NCFS was verifying and that she had no knowledge of the verification process. She interpreted the closing letters as a statement that NCFS would not help her co-parent or rectify the situation between her and the Child’s father.

39Ms. Ferguson testified that the Applicant was provided with closing letters; however, the letters did not contain specific details given the need to protect the privacy of the Child who was 15 at the time. Ms. Ferguson did not feel that it was appropriate to include the Child’s feelings about her parents in the closing letter.

40Ms. Ferguson was not aware that the Applicant wanted additional information regarding the verification process. She mentioned that the closing letter indicated that the Applicant could call in for further information.

41When asked if she would provide additional information to the Applicant regarding the verification, Ms. Ferguson indicated the privacy of the Child precluded this.

42Bearing in mind the privacy concerns of the Child, I find that the Respondent failed to provide the Applicant with sufficient information to understand the verification finding, as well as the overall verification process. The closing letters provided to the Applicant were general in nature. They could have provided the Applicant with information regarding the process of verification; verification codes and thresholds; and the fact that the decision was based on interviews with a variety of parties, without disclosing any private information. This could have addressed the Applicant’s expectation that she be involved in the verification process.

43As such, I find that the Respondent did not provide the Applicant with adequate information to understand the verification process, and the Respondent’s decision in her particular case.

44I also note that the Applicant requested records in hard copy. Issues related to disclosure fall outside the CFSRB’s jurisdiction. The Applicant may wish to raise this issue with the Office of the Information and Privacy Commissioner. Despite this, providing the Applicant with written notes and decisions may assist in addressing some of the communication challenges between the Applicant and NCFS staff.

DECISION

45For the reasons identified above, I find that the Applicant was heard by NCFS staff when she expressed Issues/Concerns. NCFS could have provided the Applicant with greater clarity regarding the self-referral process to the Holistic Program. In addition, NCFS could have provided the Applicant with more information to help her understand the verification process as well as to understand the Respondent’s finding that there were no verified child protection concerns.

ORDER

46Within 30 days the Respondent shall provide the Applicant with a written explanation regarding the verification decision. This explanation shall include background on the verification process; the various verification codes considered; the threshold to support a child protection finding; and background information on the investigation process and outcomes related to the referral. This explanation must protect the privacy of personal information under Part X of the Act. I will depend on the commitment of NCFS and Counsel to comply with this order despite my direction that the file be closed.

47Should the Respondent be amenable, I would also recommend that someone from the Holistic Program liaise with the Applicant and discuss any mental health, parenting, and traditional healing resources available to the Applicant through the Program or through other partners in the community. Any referrals should be made in writing to assist the Applicant’s record keeping.

CONFIDENTIALITY ORDER

48Pursuant 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.