ZA v. Children’s Aid Society of the Region of Peel, 2023 ONCFSRB 39

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

ZA Applicant

-and-

Children’s Aid Society of the Region of Peel Respondent

INTERIM DECISION

Adjudicator: Daniel McSweeney Date: May 09, 2023 Citation: 2023 CFSRB 39 Indexed As: ZA v Children’s Aid Society of the Region of Peel (CYFSA s.120)

WRITTEN SUBMISSIONS

ZA Applicant, Self-Represented

Children’s Aid Society of the Region of Peel, Respondent Amanda Rozario, 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 CFSRB found the Application eligible to proceed under sections 120(4)4 of the Act.

3The Applicant is the father of three sons (the “Children”).

4The Applicant identified the following Issues/Concerns in his Complaint:

1. The Applicant alleges that he was not heard by the Society regarding his concerns about the Children’s verbal reports of physical and sexual abuse by their mother and his concerns that the Children’s injuries were the result of physical abuse and not accidents; and that Society workers did not listen to recordings he provided as evidence of abuse that was occurring;

2. The Applicant alleges that he was not heard by the Society regarding the impact of the alleged abuse on his Children’s mental health; and

3. The Applicant alleges that he was not heard regarding his concerns that the Children were not disclosing abuse to Society workers due to a fear of abuse or punishment by their mother.

5The parties attended a Pre-Hearing/Mediation videoconference on April 21, 2023. They did not reach a settlement. A second Pre-Hearing was held on April 27, 2023, to finalize arrangements for a hearing at which time the Respondent gave notice that it objected to the admission of audio/video recordings that the Applicant intended to file at the hearing. The Respondent was given until May 2, 2023, to provide submissions explaining its objection. The Applicant was given until May 8, 2023, to provide his submissions explaining why the recordings should be submitted.

6The Applicant submitted that the recordings demonstrated that the Respondent refused to listen to him. The Applicant argued that Respondent workers had a duty to listen to the recordings in accordance with Child Protection Standards. The recordings explained the history of the Children and their mother’s threatening and abusive personality. The recordings also informed what the Children were saying silently via their eyes and body gestures and addressed the Children’s reluctance to speak to investigators. The Applicant indicated that he wanted the Respondent to review the recordings that were attached in an e-mail of January 3, 2023, and not the over 2000 recordings sent to the Respondent during the second investigation. The Applicant indicated that the e-mailed recordings were relevant as they dealt with the Applicant’s allegations of physical and sexual abuse and the interaction between the Children and their mother.

7In its submissions and Summary Reply, the Respondent conceded that the Applicant provided staff with recordings, and that some recordings were not listened to, and others were translated and considered in relation to the verification findings. The Respondent submitted that it did not oppose the admission of the 3 audio/video recordings that were provided and were considered during the investigations. The Respondent objected to the admission of over 2000 recordings during the second and third investigations. After being directed not to send any more recordings, the Applicant sent 2 additional recordings for which the Respondent obtained translations. The Applicant e-mailed a third recording after he was informed of the outcome of the third investigation. The Respondent obtained an independent translation of the third recording, but the outcome did not change.

THE LAW

8CFSRB Rule A6.1 (CFSRB Rules of Procedure) indicates that individuals may provide written materials to the tribunal in English or French.

ANALYSIS

9I considered the issue of admitting videos/recordings in Urdu at the hearing. As noted above, the CFSRB Rule A6.1 directs that the tribunal will accept written materials in English or French. Bearing the plain language interpretation of this Rule, I find that the rule extends to the provision of French or English transcripts of audio/video recordings to be used during CFSRB proceedings.

10Fairness requires that parties disclose all arguably relevant materials to each other in preparation for filing the documents upon which they intend to rely at the hearing. In this case, the Applicant understands and is aware of the contents of the various recordings. The Respondent has translations of 3 recordings; however, from the Applicant’s submissions, it is unclear the number of recordings that the Applicant would like to present as part of his case. For example, the Applicant attached 9 recordings to his CFSRB Application. In this case, there may be several other recordings that the Applicant would like to adduce as evidence, the content of which the Respondent is unaware of.

11As such, fairness requires that the audio/visual recordings presented for review at the hearing be accompanied by a certified transcript in English or French, so that the Respondent can prepare its case.

12Secondly, I considered the issue of the audio/video recordings.

13As noted above, I will admit evidence based on relevance. My assessment of relevance will involve an analysis of totality of the evidence including the context of any recordings (when, where, and why a recording came into existence); any evidence of coaching or responding to leading questions; the relevance to allegations of abuse against the Children; and relevance to the determinative issue at hand.

14In this case, the determinative issue is whether Respondent staff heard the Applicant’s concerns regarding whether the Applicant was heard regarding the allegations of abuse; regarding his requests to have the recordings heard by Respondent staff; regarding the impact of the alleged abuse on the Children; and regarding the reasons why the Children were not disclosing the alleged abuse to Respondent workers. I will limit evidence to whether the Applicant was heard regarding these issues. I will not be deciding whether the Respondent’s findings were correct or were justified by the Respondent.

15The content of the recordings may assist the Applicant in supporting his allegations at the hearing. However, if the Applicant intends to provide additional evidence in support of his allegations such as e-mail exchanges, text messages, or CPIN Notes, which address the 3 issues, then having the recordings reviewed at the hearing may be repetitive. It is up to the Applicant to review the totality of the evidence upon which he will rely and decide whether it is worth the cost to have the videos transcribed and translated if other evidence related to his reports are readily available.

DECISION

16At this time, I find that it is premature for me to decide the issue of the recordings as I do not have any information before me to assess the relevance and probative value of the recordings. I will wait to review the entirety of the evidence that is filed and adduced and will inform the parties of my decision regarding the admissibility of the recordings before or during the hearing.

DIRECTIONS

17If he intends use a recording as part of his evidence, the Applicant is directed to arrange for certified translations/transcripts of the recordings and provide the recording to the Respondent as part of disclosure (May 19, 2023). The Applicant may wish to liaise with the Respondent to determine which of the 3 recordings have already been translated. The recording, and a certified translations/transcripts of any recordings to be used at the hearing must be filed with the CFSRB on or before May 29, 2023.

CONFIDENTIALITY ORDER

18Pursuant 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.