SC v. Children’s Aid Society of Toronto, 2024 CFSRB 4

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SC

Applicant

-and-

Children’s Aid Society of Toronto

Respondent

DECISION

Adjudicator: Catherine Bickley

Date: January 22, 2024

Citation: 2024 CFSRB 4

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

Hayley Marrison-Shaw, 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”).

2The CFSRB found the Application eligible to proceed under sections 120(4)4 and 120(4)5 of the Act.

3The Pre-Hearing/Mediation Report lists 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 she was not provided supportive services by Respondent workers.

• The Applicant alleges that the Respondent did not provide her with reasons for its position and decisions related to her and her daughter; and,

• The Applicant alleges that the Respondent’s staff members have failed to communicate with her.

4A hearing was held by videoconference on May 4 and May 18, 2023. The Applicant testified and called two witnesses: Debbie Bridges, a family support worker at a community agency, and MA, the Applicant’s partner, who acted as a third-party driver to transport the Applicant’s daughter between the Applicant’s home and the home of the child’s father.

5The Respondent called three witnesses: a child protection worker, Chan Nankoosingh; a family service worker, Michelle Henry; and a supervisor, Joji John. Their evidence in chief was presented by affidavit. These witnesses attended the hearing and were cross-examined by Applicant counsel.

6The parties were also directed to make written submissions on one issue following the hearing.

7I have reviewed the Application, the Response, all documents entered into evidence during the hearing, and the post-hearing written submissions.

8For the reasons set out below, I find that the Respondent did not fully meet its obligations under the Act.

background

9The Applicant is the mother of one child. She and the child’s father lived together during much of the period in question. The Applicant testified that he was verbally, physically and mentally abusive to her almost daily and would periodically kick her out of their shared home.

10The Applicant’s child was primarily in the care of the child’s father when the Applicant was not living with him. The Applicant expressed numerous concerns to the Respondent about the child’s wellbeing, including that the child was in her ex-partner’s truck when he was selling drugs, was left in the truck while he was in a bar, witnessed domestic violence between him and his new partner, and witnessed fights between adults in his home.

analysis

Inadequate pre-hearing disclosure by the Respondent

11Prior to the hearing, the Applicant raised issues with the disclosure provided by the Respondent. After reviewing the provided disclosure, I agreed with the Applicant that the documents were excessively redacted and directed the Respondent to remove many of the redactions. At the start of the hearing on the merits, the Applicant confirmed that she had ultimately received adequate disclosure.

The Applicant’s status in relation to her child

12There remains a dispute between the parties as to whether the Applicant had custody of her daughter at certain times. The Respondent limited the information it provided to the Applicant based on its assumption that she was not a custodial parent and therefore, in its view, not entitled to certain information.

13I considered the Applicant’s status in relation to her child in an Interim Decision (SC v. Children’s Aid Society of Toronto, 2023 CFSRB 20) (“the Interim Decision”):

The 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.

14During closing submissions at the May 2023 hearing on the merits both parties made assertions as to the law governing custody. As these assertions were unsupported by any evidence or specific reference to relevant legislation, the parties were directed to make written submissions on the issue.

15In its post-hearing submissions, the Respondent continued to make bald assertions as to how various sections of the Act should be interpreted without providing any supporting caselaw. The Respondent acknowledged that the Applicant “may have had joint decision-making authority with [the child’s] father” but argued that she did not have sole decision-making authority.

16The Applicant’s submissions focused on the Act’s definition of “parent”. She noted the CFSRB’s comments at para 33 of J.G. v. Windsor Essex Children’s Aid Society, 2013 CFSRB 8:

There was no court order as far as the evidence shows, giving custody to one parent or the other. Even though the Child was living with the father, meaning that he did, in fact, have custody as far as day to day living went, the mother was still a parent under the Act and should have been treated as such.

17In the J.G. case, the CFSRB went on to find that the Applicant mother, as a parent, was entitled to have her concerns about her child’s safety while in the father’s care taken seriously. The CFSRB found that she was also entitled to information about investigative steps the children’s aid society had taken regarding those concerns.

18In the case before me, the Applicant repeatedly expressed concerns to the Respondent regarding her child’s wellbeing while in the child’s father’s care and sought information about the Respondent’s actions regarding the child’s wellbeing. In response, the Respondent significantly limited the information it provided to the Applicant based on its view that the Applicant was a non-custodial parent.

19The Respondent’s post-hearing submissions do not persuade me that the Interim Decision was incorrect. In any event, as noted above, the CFSRB has found that a parent (whether that parent has custody of the child or not) is entitled to receive information when a children’s aid society investigates the wellbeing of a child in the care of the other parent. See also: WM v. Catholic Children’s Aid Society of Toronto, 2018 CFSRB 53.

20I turn now to the substantive issues raised by the Applicant.

The CFSRB does not have jurisdiction to evaluate the level of support services provided by Respondent workers to the Applicant

21In reviewing an Application filed under section 120 of the Act, the CFSRB’s jurisdiction is limited and does not include an assessment of a children’s aid society’s substantive actions.

22This Application was found eligible to proceed under subsections 120(4)4 and 120(4)5. The focus, therefore, is on whether the Applicant’s concerns were heard by the Respondent and whether the Respondent provided the Applicant with meaningful reasons for decisions that affected her interests. The focus is not on whether the Respondent provided particular services to the Applicant. Thus I make no finding as to whether the Respondent’s actions in providing or attempting to provide the Applicant with supportive services were adequate.

The Respondent heard the Applicant’s concerns regarding the health and safety of her daughter while in her father’s care

23The CFSRB has explained the right to be heard under section 120(4)4 of the Act as follows:

To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.

P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 (para 14)

24The Applicant testified that she felt the Respondent dismissed her concerns because it thought she was a drug addict and a prostitute. Specifically, she felt that Ms. Henry “treated me like a drug addicted ho.” Ms. Nakoosingh confirmed that police informed the Respondent in 2019 that the Applicant was a sex worker and had been observed to be under the influence of drugs. The Applicant disputes this characterization of her actions, stating that instead of being “high” she was suffering from trauma due to abuse by the child’s father.

25Although there were communication difficulties between the Applicant and Respondent workers, discussed further below, I find that the Respondent followed up on the concerns raised by the Applicant. Respondent workers made both announced and unannounced visits to the home of the child’s father while the child was living there. They observed the child interacting with her father and with other adults and concluded the child was safe.

The Respondent did not provide the Applicant with reasons for positions and decisions related to her and her daughter

26The “right to reasons” under section 120(4)5 of the Act is a right to receive a meaningful explanation of decisions that affect one’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8, at para 13, the CFSRB held that:

A parent 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.

27The Respondent does not dispute that it provided only limited information to the Applicant about the actions it took in response to her concerns about her child’s wellbeing. It did so because it believed the Applicant was not a custodial parent and believed that she was therefore not entitled to the information. I have found that they were incorrect in both those conclusions.

28In addition, the Applicant testified that when she did have meetings or telephone calls with Respondent workers “they didn’t explain things so that I could understand.”

29The information provided to the Applicant was insufficient for her to understand what factors the Respondent took into account in assessing her child’s safety and wellbeing. As a result, she did not understand why and how the Respondent reached the conclusion that her child was safe in the care of the child’s father.

30Accordingly, I find that the Respondent failed to meet its obligation under the Act to provide the Applicant with meaningful reasons for its decision that her daughter was safe in the care of the child’s father

The Applicant and Respondent share responsibility for communication difficulties

31Communication is an important element of both the right to be heard and the right to receive meaningful reasons. I find that the Applicant and the Respondent share responsibility for the communication difficulties they experienced.

32The Applicant alleged that her phone calls and emails to Ms. Henry and the supervisor, Mr. John, were ignored and that Ms. Henry was rude and hung up on her.

33Ms. Henry’s evidence confirms that she sometimes did not respond to the Applicant’s emails. I accept Ms. Bridge’s testimony that Ms. Henry said during a meeting that she was not responding to the Applicant’s emails because their format made them difficult to read. Ms. Bridges suggested that the format of the Applicant’s emails (lacking capitalization and punctuation) was a result of a learning disability. I agree with the Applicant’s submission that rejecting the Applicant’s emails because of their format was a failure to consider whether that format resulted from a disability that required accommodation.

34The evidence establishes that at least one of the emails sent to the supervisor, Mr. John, was sent to an incorrect email address. He cannot be held responsible for not responding to an email he never received. I also find that his response to the Applicant’s phone messages was timely. He was on vacation when the phone messages were left and responded shortly after his return.

35The Applicant testified that when she got upset during phone calls, Ms. Henry would raise her voice, cut her off, and hang up. Ms. Henry said that she muted the Applicant during one videoconference meeting but denied hanging up on her. I prefer the testimony of Ms. Bridges that Ms. Henry ended a Zoom meeting after the Applicant became upset.

36Ms. Bridges testified that she had worked with the Applicant for a number of years. She explained that she makes a distinction between the Applicant yelling at someone and yelling at a frustrating situation. She said that she did not find the Applicant’s emails difficult to read. Ms. Bridge’s evidence demonstrated that a trauma informed professional is able to build a constructive and supportive relationship with the Applicant. Unfortunately, the Respondent’s workers were not able to build such a relationship with the Applicant.

37The Applicant acknowledged that “I do cuss sometimes out of frustration, lose my temper, I’m an emotional person, I could raise my voice, not be rude, trying to get answers.” Both MA and Ms. Bridges confirmed that the Applicant sometimes raised her voice.

38The Respondent’s workers do not have to tolerate verbal abuse. At the same time, they are trained to understand the emotions arising from concern for one’s child and can be expected to use effective de-escalation techniques when dealing with people in a state of heightened emotion.

39There were times when the Applicant refused to speak with Respondent workers. MA testified that the Applicant also sometimes hung up on Respondent workers.

40For these reasons, I find that the Applicant and Respondent workers both contributed to communication difficulties which resulted in the Applicant not feeling her concerns were being heard and which made the Respondent’s work with the Applicant more challenging.

conclusion

41I find that the Respondent heard and followed up on the Applicant’s concerns about her child’s wellbeing while in the care of the child’s father. In contrast, I find that the Respondent did not fulfil its obligation under the Act to provide the Applicant with meaningful reasons for decisions which affected her interests. This failure rested primarily on the Respondent’s mistaken belief that the Applicant was not entitled to information about its efforts to investigate her child’s wellbeing.

42Through this hearing, the Applicant has now heard some explanations from the Respondent for its actions during the time it was involved with her family. She has also been provided with numerous Respondent documents through pre-hearing disclosure. She does not, however, have a clear summary of the Respondent’s actions and observations that led it to conclude her child was safe.

order

43Within 30 days, the Respondent shall provide the Applicant with a letter setting out in detail what actions it took to investigate the welfare of the Applicant’s child while the child was in the care of the child’s father. The letter shall be written in plain language.

confidentiality order

44Pursuant 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.