JB v. Huron-Perth Children’s Aid Society, 2023 CFSRB 1

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JB Applicant

-and-

Huron-Perth Children’s Aid Society Respondent

INTERIM DECISION

Adjudicator: Silvia Novak Date: January 04, 2023 Citation: 2023 CFSRB 1 Indexed As: JB v Huron-Perth Children’s Aid Society (CYFSA s.120)

WRITTEN SUBMISSIONS

JB, Applicant Self-represented

Huron Perth Children’s Aid Society, Respondent Barbara H. Tuer, Counsel

Introduction

1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”).

2The Application was found eligible to proceed 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 his interests were made, and to be heard when he had concerns about the services he was receiving; and the Society is alleged to have failed to provide the Applicant with reasons for a decision that affected his interests.

3The Applicant is the father of two children and is currently facing criminal charges related to alleged sexual abuse of his daughter. In his Application, he alleges his concerns about a worker have not been heard and that he has not been provided an explanation for why the Society verified concerns despite the worker’s promise to provide him with a letter exonerating him of any wrongdoing. He alleges the worker advised him the OPP did not conduct a proper investigation and that she had evidence that he did nothing wrong. He also feels he has not been provided reasons as to why he cannot be provided the “proof” of his innocence.

4In its response, the Respondent states the CFSRB lacks jurisdiction to review the Application because the issues in the Application are before the courts and that allegations of worker negligence, misconduct or defamation are outside the scope of the CFSRB. The Respondent also stated they have made every effort to explain the Society’s decisions to the Applicant.

5The parties participated in a pre-hearing mediation on September 26, 2022 but did not reach a settlement. In a subsequent case management direction, the parties were directed to provide copies of all relevant Court documents and invited to make written submissions on the jurisdictional issues.

the law

6Section 120(4) of the Act provides:

The following matters may be reviewed by the Board under this section: …

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.

Section 15(2) of the Act provides:

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.

7Section 120(8)(a) of the Act states:

The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) Is an issue that has been decided by the court or is before the court

8The Ontario Court of Appeal ruled in Children’s Aid Society of Waterloo v. DD, 2011 ONCA 441 that the existence of child protection proceedings does not bar the CFSRB from reviewing complaints about services received from a children’s aid society if the complaints are separate and different from the substantive issues before the court.

background

9The Respondent Society opened an investigation after receiving a referral that the Applicant had been sexually inappropriate with his child. The Society reported the allegations to the Ontario Provincial Police (OPP) and the child subsequently participated in a recorded interview conducted by the OPP in the presence of the worker. The following day the OPP advised the Society they would be proceeding with charging the Applicant.

10Based on the Respondent’s submission, several months later the Society held a verification conference and a decision was made to verify sexual harm. The worker sent him a closing letter that states:

“The Society verified that [Child] was likely to be sexually harmed as a result of an escalating pattern of questionable activity by you and [Child] viewed the activities as inappropriate”

11Approximately two months after the Applicant was provided the verification decision, he participated in phone calls and email communication with the Program Manager. He expressed his concerns that the worker had not shared information with the OPP regarding statements made by the child’s mother. He advised he had recorded conversations with the worker wherein she indicates to him that he had done nothing wrong and that she would provide a letter of support. He was invited to provide the recordings, given another copy of the verification letter, as well as information regarding the complaints process.

12Dissatisfied with the response of the Program Manager, the Applicant then requested to escalate his concerns. In the days following this meeting, he provided the Society with a copy of the recordings. The Director of Services and Program Manager listened to the recordings and then met with the Applicant. During that meeting, they apologized acknowledging that the worker’s statements would have been confusing. They indicated they would further investigate the Applicant’s concerns. The DofS subsequently sent an apology letter that outlines the information noted above and states:

“we discussed your concerns that the assigned worker had suggested that you would be receiving a different letter received by you pertaining to the outcome of the investigation. You subsequently shared recorded conversations to support this concern. The suggestion made by the worker…was made in error…”

13A second letter was sent advising that the decision to lay charges is made by police and that the worker miscommunicated about the Society’s verification decision. The letter also indicated the Society would take steps “internally…to ensure these types of miscommunications does not happen in the future”.

14In their submission on jurisdiction, the Respondent states the decision by the OPP to charge the Applicant was made independently of the actions of the Society and the validity of those charges will be determined by the Court. They attached a Notice of Application and a related subpoena requiring the Society to disclose their records. They acknowledge the worker’s statements that she would provide him a letter exonerating him were made in error. They argue the CFSRB is not an appropriate forum to discuss what if any disciplinary measures were taken and the issue of whether the worker acted improperly will be an issue in the criminal court. They advised the verification decision was made based on a recorded interview with the child.

15In his submission the Applicant states he is not asking the CFSRB to determine whether or not he is guilty of the charges that are before the Court, rather he is asking the CFSRB to determine if he was granted a right to participate and be heard and whether he was provided reasons for the CAS’s decisions. He argues his right to participate and be heard was through the worker whom he has since been told failed to document and/or share information with management; Therefore, he feels he was not provided a fair and proper investigation. He further alleges that the worker told him his ex-wife “shared the truth” after the original questioning of the child and that the worker tried to share this information with the crown attorney. He believes the verification letter he received is based on unreliable information. He would like the worker’s documentation. He believes the criminal proceedings would not be continuing if the Society provided him with a new letter outlining the concerns were not verified.

16The Applicant also noted in his submission that the Society management met with him and explained that when police lay charges in all likelihood the Society will also verify protection concerns as the Society’s threshold for evidence is lower. He relayed the program manager commented that his concern about the worker not sharing information and the potential impact on the investigation was “fair”.

analysis

17Although the Applicant indicates he is not requesting a review of his guilt or innocence, he argues that the criminal matter would not be pursued if the Society complied with his request to share their evidence with the authorities. It is not within the CFSRB’s authority to review the OPP’s or Crown’s actions including the decision to lay and pursue charges.

18In reviewing the Court documents, I find that the concerns the Applicant raised regarding records disclosure are issues before the criminal court and therefore outside the CFSRB’s jurisdiction. A subpoena was issued by the Court to obtain the Society’s records including all notes made by any staff member.

19A child protection verification is separate from the decision to lay charges and/or the findings of a criminal court. There are times when a concern might be verified by a Society, but charges are not laid. In this instance, the Society verified child protection concerns months after being informed the OPP would lay charges. During those months the Applicant believed that the worker continued to collect information and that she felt the OPP investigation was flawed. In disagreement is whether the Respondent provided the Applicant with an opportunity to be heard during the Society’s investigation, which, unlike the OPP investigation, does fall within the Board’s jurisdiction. The Applicant also feels the Respondent has not heard his concerns about the potential impact the worker’s actions had on the Society’s verification, which is again within the Board’s jurisdiction.

20Based on the submissions of both parties the worker mistakenly led the Applicant to believe the Society felt he did nothing wrong and then sent him a letter indicating they felt there was an “escalating pattern of questionable activity” viewed as inappropriate by the child. The Applicant has the right to be provided with a clearer explanation for why the Society verified the protection concerns and why that verification has not changed since the Society’s review of the worker’s actions.

SUMMARY

21In reviewing the submissions on jurisdiction, I find the Board does not have jurisdiction regarding the validity of the criminal charges, and the issue of records disclosure. However, I find the CFSRB does have jurisdiction over the following two issues:

a. the Applicant’s allegation that he has not been provided an opportunity to be heard and represented when the decision to verify protections concerns was made and to be heard in relation to his concerns about the actions of the worker, and;

b. that he has not been provided reasons for why the Society verified protection concerns and why that verification has not changed since the Society’s review of the worker’s actions.

ORDER

22The Application will proceed in the areas for which the Board has jurisdiction.

confidentiality ordeR

23Pursuant 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.