WL v Family and Children’s Services of the Waterloo Region, 2023 CFSRB 68

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

WL Applicant

-and-

Family and Children’s Services of the Waterloo Region Respondent

DECISION

Adjudicator: Daniel McSweeney Date: August 11, 2023 Citation: 2023 CFSRB 68 Indexed As: WL v Family and Children’s Services of the Waterloo Region (CYFSA s.120)

WRITTEN SUBMISSIONS

WL, Applicant Self-Represented

Family and Children’s Services of the Waterloo Region, Respondent Ben McIvor, Counsel

INTRODUCTION

1The Applicant is the father of one son (the “Child”). The Applicant was concerned with the health of the Child; a recent diagnosis and implementation of a treatment plan for the Child; and the Child’s mother’s disparaging of the Applicant in the presence of the Child.

2The Applicant and the Family and Children’s Services of the Waterloo Region (the Respondent) entered into a final Settlement Agreement (the “Agreement”) dated July 12, 2023, in relation to a Mediation held on the same day. The Agreement represented a full settlement of all issues raised in the Application, received by the Child and Family Services Review Board (the “CFSRB”) on June 1, 2023.

3The Agreement consisted of 5 detailed Terms (3 of which were to be addressed by the Respondent – Terms 1, 2, and 4) with an implementation date of August 9, 2023, and a compliance date of August 16, 2023. The remaining 2 Terms related to actions that the Applicant agreed to implement. The Respondent provided responses to the 3 Terms in a letter dated August 4, 2023. The Applicant provided a letter outlining the reasons why he did not believe the Respondent complied with the Terms on August 11, 2023.

4In accordance with the CFSRB’s procedures, I will determine whether the Respondent has complied with the Agreement.

DECISION

5After reviewing the documents before me, I find that the Respondent has met its commitments and obligations as set out in the Agreement and as required by the Child, Youth and Family Services Act, 2017 S.O. 2017, Chapter 14, Schedule 1 (the “Act”) in relation to Terms 1 and 2; however, it is not in compliance with Term 4.

6The reasons for my findings are as follows.

THE LAW

7The CFSRB found the Application to be eligible for review under section 120 of the Act. The Act outlines the rights of Applicants, the duties and obligations of Children’s Aid Societies, and the mandate of the CFSRB.

8Section 120(4) of the Act reads as follows:

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

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 119(1) as required under subsection 119(2).

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

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.

6. Such other matters as may be prescribed.

Subsection 120(7) indicates that: After reviewing the complaint, the Board may,

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

(e) dismiss the complaint

9The Act does not require or permit the CFSRB to make a determination as to the clinical wisdom or validity of a decision made by a Society in any given situation under review by the CFSRB and for which the Society is giving its reasons under this section of the Act.

10In an allegation of non-compliance, an Applicant’s statement of disagreement or dissatisfaction with the reasons given by the Society does not negate or invalidate those reasons.

11In his August 11, 2023, letter, the Applicant indicated that the Society did not address his serious concerns, and failed to follow the Ontario Child Protection Standards in relation to its investigation of the Applicant’s allegations of emotional harm. The Applicant provided a list which he identified as reasonable and probable grounds to believe the Child’s mother is causing emotional harm to the Child which he maintained were not thoroughly examined and considered by Respondent staff. He requested that a hearing be scheduled so that the CFSRB can resolve the difference of opinion regarding the outcome of the investigation, as well as the interpretation of the law.

12The Applicant also requested a copy of the risk assessment performed by the Respondent which concluded that an investigation was not warranted.

13Rule 8.1 in the CFSRB Rules of Procedure indicates that the CFSRB may conduct hearings orally, in writing, or electronically by teleconference or video-conference. In deciding the format of the hearing, the CFSRB will consider:

a) Whether it is a fair and accessible process for the parties;

b) The costs and efficiency of the process;

c) The potential for a more expeditious resolution;

d) The convenience of the parties;

e) The consistency with the CFSRB’s mandate;

f) Whether facts or evidence may be agreed upon;

g) The estimated duration of the hearing;

h) Whether the issues for hearing are predominantly legal issues;

i) Whether oral testimony is likely to be needed;

j) Any objections to the format of the hearing.

ANALYSIS

14I found that I could decide the issue of non-compliance based on the detailed response provided by the Respondent, and the detailed allegations of non-compliance provided by the Applicant. A review in writing is an efficient and expeditious approach given that no additional evidence is needed for me to decide the matter.

15The Applicant has requested a hearing be scheduled to address his concerns. As noted in the Settlement Agreement, the Agreement represented a full settlement of the issues included in the Applicant’s complaint. As such, the Applicant does not have access to move his complaint further along to a hearing.

Written Review of Terms of Settlement

Term 1: Why the Respondent did not Engage the Office of the Children’s Lawyer (OCL) in Relation to the Applicant’s Concerns?

16In its response, the Respondent indicated that the Act contemplates legal representation for a child during the course of a proceeding. The Respondent is not involved in any proceedings with the Applicant and therefore the Respondent did not consider involving the OCL in its response to the Applicant’s concerns. In addition, the Respondent indicted that a child protection agency can involve the OCL without commencing court proceedings if there is consideration of an alternative dispute resolution.

17The Applicant’s non-compliance allegations mention the OCL; however, he did not address whether the Respondent provided an adequate response to the Term as outlined in the Settlement.

18I find that the Respondent provided the Applicant with a response that clearly explained why the OCL was not engaged in relation to the Applicant’s concerns. The Respondent supported its position with appropriate citations from the Act as requested in the Term.

19As such, I find that the Respondent has complied with Issue 1 in the Terms of Settlement.

Term 2: Explanation of Assist vs. Joint Investigation

20The Applicant conceded in his non-compliance letter that he was satisfied with the Respondent’s response to this Term.

Term 4: Reasons Deciding Not to Open an Investigation

21The Respondent indicated in its response that the Applicant’s concerns did not meet the provincial standards for an investigation. Nevertheless, Respondent staff spoke with the Child’s mother regarding her speaking negatively about the Applicant to the Child. Staff were satisfied with the mother’s response. The Respondent also indicated that there was no reason to believe that there were concerns with the Child’s mother following advice of a medical professional regarding the Child’s diagnosis.

22The Applicant indicated that he was not satisfied with the Respondent’s response which he argued did not adequately fulfil Term 4 in the Settlement Agreement.

23To address the Applicant’s concerns, I considered the jurisprudence on sufficiency or adequacy of reasons. Paragraph 21, S.V.D and M.V.D. v. Children’s Aid Society of the Counties of Stormont, Dundas and Glengarry, 2015 CFSRB 47 outlines what constitutes sufficient reasons for an Internal Complaints Review Panel (ICRP)process which I find is transferrable to the CFSRB’s non-compliance process:

As stated previously, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation including an examination of the timeliness and the level of detail provided. A parent or complainants 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. By extension, the reasons for any decision need to take into account challenges to the validity of a society’s reasons that may be posed by a complainant in order to fully meet the test of being sufficient. That is, are the reasons for a society’s decision: sound, just, well founded, based on logic or fact, and reasonable given all available information Otherwise, societies have a license to make decisions that are unsound, unjust, not well founded and unreasonable.

24The Response simply indicated that the Applicant’s concerns were documented and assessed based on the Ontario Eligibility Spectrum (2021), and it was determined that the concerns did not meet the provincial criteria for an investigation.

25Taking into account the jurisprudence on sufficiency of reasons cited above, I find that the Respondent’s response did not provide the Applicant with sufficient information to justify its decision not to open an investigation into his concerns. The Response to Term 4 does not provide the Applicant with information for him to understand how his concerns did not meet the provincial criteria for an investigation. As such, the Applicant does not understand why the Respondent did not initiate an investigation, especially in relation to the “reasonable and probable grounds” he has cited in his non-compliance allegations.

26Given this, I find that the Respondent has not complied with Term 4 in the Settlement Agreement.

ORDER

27I direct that the Respondent provide the Applicant with the following on or before Friday, September 8, 2023.

1. In relation to Term 4, the Respondent will provide the Applicant with a detailed written explanation as to why the Respondent did not decide to open an investigation. The explanation will explain the provincial criteria and why the evidence before staff did not meet the criteria for an investigation. The explanation will address the failure to meet with the Applicant and to review the evidence provided by the Applicant in support of his allegations. If appropriate, the explanation will make reference to Standard 1 in the Ontario Child Protection Standards. Should the Respondent be amenable, and should it be available, the Respondent is asked to provide the Applicant with a risk assessment that concluded that an investigation was not warranted.

28The file will be closed after the CFSRB receives the Respondent’s responses.

CONFIDENTIALITY ORDER

29Pursuant 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.