SC v. Children’s Aid Society of Toronto, 2023 CFSRB 20

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SC Applicant

-and-

Children’s Aid Society of Toronto Respondent

INTERIM DECISION

Adjudicator: Catherine Bickley Date: March 01, 2023 Citation: 2023 CFSRB 20 Indexed As: SC v Children’s Aid Society of Toronto (CYFSA s.120)

APPEARANCES

SC, Applicant Ayhan Bakar, Counsel

Children’s Aid Society of Toronto, Respondent Chitika Whitanage, 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”).

2This Decision deals with issues the Applicant has raised about the Respondent’s disclosure. For the reasons set out below, I find that the Respondent has not made the required disclosure.

background

3The CFSRB found the Application eligible to proceed under sections 120(4) and 120(4)5 of the Act.

4The Pre-Hearing/Mediation Report listed the issues as follows:

• The Applicant alleges that the Respondent has not heard her concerns regarding the health and safety of her daughter while she was in the care of her father;
• The Applicant alleges that the Respondent did not provide her with reasons for its position and decisions related to her and her daughter;
• The Applicant alleges that the Respondent’s staff members have failed to communicate with her; and,
• The Applicant alleges that she was not provided supportive services by Respondent workers.

5The parties were directed to disclose to each other all arguably relevant material. The Respondent disclosed documents covering the period from January 2019 to September 29, 2021. It removed legal documentation (including documents subject to solicitor-client privilege) and redacted information “related to third party, non-professionals, and foster family names and locations.”

6The Applicant brought a motion raising issues with the Respondent’s disclosure.

7After hearing and considering submissions from both parties, I directed the parties as follows:

• The Respondent shall provide to the CFSRB, in hard copy, the following:
  • The redacted disclosure package it provided to the Applicant, including the cover letter;
  • An unredacted version of the disclosure package (with the exception of items subject to solicitor-client privilege).
  • A chart or list setting out the reason(s) for each redaction.
  • A copy of the Respondent’s policy governing disclosure.
• The Respondent shall also provide copies of the last two items to the Applicant.
• The Applicant shall provide to the CFSRB and the Respondent documentation establishing the Applicant’s custody of her child.

analysis

The Respondent’s position on disclosure

8The Respondent acknowledges that the CFSRB has the authority to order disclosure but disputes the relevance and appropriateness of the disclosure sought by the Applicant. It submits that it has disclosed all material that is relevant to the service complaint before the CFSRB. It has concerns regarding disclosing information about individuals who are not participating in this hearing.

9The Respondent also submits that it could not disclose certain information about the Applicant’s child to her because there was no proof the Applicant had custody.

Custody issue

10The Applicant has provided documentation regarding the custody of her child. A statement of agreed facts, incorporated into a February 3, 2017 Ontario Court of Justice Order granted the Applicant sole custody under the supervision of the Respondent. By order dated September 29, 2017, the February 3, 2017 supervision order was “terminated with no further order of protection being made.” The September 29, 2017 order is silent with respect to custody. I conclude therefore, in the absence of any evidence to the contrary, that the Applicant retains custody of her child.

Disclosure required for CFSRB hearings

11The leading CFSRB decision on disclosure is J.S. v. Windsor Essex Children’s Aid Society, 2017 CFSRB 33 (“J.S.”). In that decision, the CFSRB noted that the right of an individual to receive disclosure when involved in an administrative decision-making process is one element of ensuring a “fair hearing that adheres to the principles of natural justice and procedural fairness” (para 15). The CFSRB concluded, at para 17, that “[f]ile disclosure is required in order to ensure that an applicant can engage in the Board’s complaint process in a meaningful way; it is a central component of a fair and transparent process before the Board.”

12In J.S., the CFSRB noted, however, that the right to file disclosure has limits. It stated “a children’s aid society has the right to redact identifying information to protect the privacy of others and to redact other information that may be privileged” (para 18). The key question is “whether a society has provided sufficient file disclosure to enable the applicant to participate in the Board’s process in a meaningful way”(para 19).

13The CFSRB went on to set out the parameters of the required disclosure:

… [the] file must be minimally redacted and the reasons for the redactions must be explained to an applicant. In addition, a children’s aid society must provide an applicant with its disclosure policy so that an applicant understands why certain information has been redacted. (para 20)

The Respondent did not meet its disclosure obligations

14I agree with the Applicant’s submission that none of the requirements set out in J.S. were met. Specifically:

• The redactions were significant rather than minimal;
• The Respondent did not provide reasons for the redactions; and,
• The Respondent did not give the Applicant a copy of the policy governing the redactions.

15For all of these reasons, I conclude that the Respondent must provide the Applicant with additional disclosure as directed below.

16The Respondent must remove all redactions made as a result of its mistaken impression that the Applicant did not have custody of her daughter.

17The Respondent redacted numerous contact logs on the basis that they contained “info re father/child unrelated to complaint before the CFSRB.” The Respondent must re-evaluate these redactions keeping in mind that one of the issues before this hearing is whether the Respondent heard the Applicant’s concerns regarding the health and safety of her child while in the care of the child’s father. In my view, at least some of those contact logs are arguably relevant to that issue.

18The Respondent is not required to provide unredacted information “related to third party, non-professionals, and foster family names and locations.” Nor is it required to disclose any information for which privilege is claimed.

19The CFSRB will issue a Case Management Direction regarding the timing of next steps in the proceeding, including the required amended disclosure.

order

20The Respondent shall provide amended disclosure as set out in paragraphs 16 and 17.

confidentiality order

21Pursuant 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.