LT v. Children's Aid Society of Toronto, 2024 CFSRB 75

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

LT Applicant

-and-

Children's Aid Society of Toronto Respondent

DECISION

Adjudicator: Lise Henrie Date: June 27, 2024 Citation: 2024 CFSRB 75 Indexed As: LT v Children's Aid Society of Toronto (CYFSA s.120)

APPEARANCES

LT, Applicant Abha Sharma, Counsel

Children's Aid Society of Toronto, Respondent Jodi Kaiman, Counsel

OVERVIEW

1This is an Application to the Child and Family Services Review Board (“CFSRB”) filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the “Act”). A hearing was held by videoconference on June 3rd and 4th, 2024.

ISSUES

2The Applicant alleges that the society did not giver her a chance to be heard and did not provide her with reasons for its decisions.

3The Respondent (hereinafter “the Society”) submits that it complied with its obligations under the Act.

RESULT

4The Application is dismissed.

PROCEDURAL ISSUES

CFSRB Jurisdiction

5According to the January 12, 2024 Notice of Eligibility, the CFSRB confirmed that the following allegations were eligible to proceed:

• The Applicant was not given the opportunity to be heard and represented when decisions affecting his/her interests were made, or a chance to be heard when he/she raised concerns about the services he/she is receiving (section 120(4)4 of the Act).

• The Society is alleged to have failed to provide the Applicant with reasons for a decision that affects his/her interests (section 120(4)5 of the Act).

6From the outset of the hearing, it appeared that the Applicant misunderstood the scope of jurisdiction of the CFSRB. More precisely, the Applicant requested that I order the reinvestigation of the allegations of abuse or order an alternative remedy, and in closing, the Applicant also asked for costs against the Society.

7As a creature of statute, the CFSRB derives its jurisdiction entirely from the statutory provisions which govern it. Section 120 of the Act sets out the matters that may be reviewed by the CFSRB as well as what orders the CFSRB can make:

After reviewing the complaint, the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

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

(e) dismiss the complaint; or

(f) make such other order as may be prescribed.

8A review of the section 120(7) shows that the CFSRB’s power is limited in scope. The process under section 120 is not a judicial review of the Society’s decision. To be clear, the I cannot order the Society to reopen an investigation, nor can I order costs against the Society.

Witnesses

9The misunderstanding of the CFSRB’s jurisdiction caused the Applicant to put forward the names of potential witnesses who would testify about what they heard or perceived from the children about the alleged abuse. I confirmed that the hearing was not dealing with whether the Society made the right decision by not verifying allegations of harm, but to determine whether the Applicant had been heard and whether the Society provided her with reasons for their decision, even if the Applicant did not agree with those decisions. For that reason, I indicated that testimony from the proposed witnesses would not be relevant as it was not within the scope of my jurisdiction. I did provide some leeway in having one of the witnesses testify as she indicated having dealings with the Society.

ANALYSIS

Context

10The Applicant testified that she first contacted the Society on March 21, 2023 after her children returned from spending time with their father. She said that her son was crying and that he said that his father had hit him. She said that her son had bruises all over his body and that he told her that his father abused him and his sister. The Applicant stated that her daughter didn’t have as many marks because she did not fight back like her son. The Applicant testified that she took her children to the hospital and a nurse provided her with the phone number for the Society. She was given an appointment to return the following day for an assessment at the hospital Suspected Child Abuse and Neglect (SCAN) Program, a specialized program for assessing and treating children who may have been maltreated. The Applicant made the first contact with the Society, through an intake worker, during this visit at the hospital.

SCAN appointment

11The Applicant testified that worker J called her the following day to tell her not to go to the hospital and to send her photos to determine if she needed to go to the hospital. The Applicant said that she had to attend the appointment because the intake worker she had spoken to the previous evening had said that the examination had to be done quickly to ensure that any marks were still visible to ensure a proper diagnosis.

12The Respondent entered a contact log from worker J into evidence. This log from 10:42 to 10:51 on March 22, 2023 shows that doctors from the hospital contacted worker J to say that the Applicant’s children had not been seen by a doctor the previous day and said that they would like to see the photographs the Applicant had taken of the injuries to determine if an in-person appointment with SCAN was needed. Another contact log from 11:51 to 11:55 shows that worker J communicated the hospital’s request for the photographs to the Applicant, but the Applicant said that she did not want to share the photographs and wanted her children to be seen at SCAN while the marks were still present. These logs are consistent with the Applicant’s testimony and show that worker J had requested the photographs for the hospital and that despite there being an appointment, the doctors were not sure an appointment was necessary. Worker J also testified that the photographs were not for the Society’s own investigation as the Society is not qualified to evaluate injuries.

13The latter log indicates that worker J told the Applicant that “she may or may not attend the hospital” with her and would be consulting her supervisor. In her testimony, worker J said that the Applicant acknowledged this and they agreed to connect later. This evidence indicates that the worker was not necessarily attending the SCAN appointment with the Applicant and children however the Applicant’s testimony indicates that she understood otherwise.

14In her testimony, the Applicant said that worker J had told her that she would be attending the hospital with the police and someone else. She said that she went to the hospital with the kids and they examined only her son. She said that no one told her that there would be no representative from the Society attending with her. She said that the medical staff waited a few minutes and were surprised that no one came from the Society. The Applicant said that she felt neglected when worker J did not attend the hospital, as if nothing had happened. The Applicant said that she felt that worker J’s absence had a negative impact on the diagnosis. She said that the Society should accompany the children.

15I find that worker J’s testimony was clear and supported by the documentary evidence and indicated that she may or may not attend the hospital. It is possible that the nuance was missed by the Applicant. I find that the evidence shows that there is no need for the Society to attend such appointments. Another log from 12:02 to 12:08 shows that worker J and her supervisor S determined that the Society would not attend the SCAN appointment and allow SCAN to proceed with the examination. According to the Respondent’s response, worker J and supervisor S reasoned that if SCAN had concerns, they would direct the family to connect with the Society and with the police. Worker J’s supervisor testified that he met with worker J and they determined that she would not attend SCAN. He said that the Society generally does not attend and that they base their decision on factors such as the history with the family. When they make the decision, he said that they consider that the children’s safety and the fact that they were with the Applicant. The supervisor also stated that the Society is not qualified to make medical diagnosis and did not need to be there for the examination at SCAN. I do not find that the Applicant demonstrated that the Society needed to attend the SCAN appointment to hear her. The evidence shows that the Society ensured proper communications with the Applicant and the hospital before and after the appointment.

16I note that in an email from the Applicant to worker J on June 2, 2023, the Applicant writes that a judge determining parenting arrangements told her that she had no proof of abuse and she strongly believed that the physical abuse was a strong piece of evidence to convince the court. In this email, she asked the worker to interview the children and talk to the supervisor of the SCAN to explain her perspective. Worker J’s response was that the interviews with the children had been done according to the joint investigation protocol, and that the children had already been examined by SCAN. She also wrote that the Society had considered information received from the school. I am satisfied that the Society continued to communicate with the Applicant and to reiterate reasons for its decisions.

Compliance with parenting arrangements

17The Applicant also testified that worker J told her to continue sending the children to be with their father. She said that although the Society focused just on the sexual abuse allegations, she said that they still forced her to send the children to their father. She said that she felt threatened that if she didn’t send them to see their father, there would be consequences and that her children could be taken from her.

18Worker J testified that she consulted with her supervisor on whether to take a position about the children’s contact with their father. She said that there are a number of questions to consider when taking a position. In early stages of an investigation, she said that the Society does not usually take a position, but they would consider any previous allegations. Worker J said that she consulted with her supervisor, a conversation documented as well by a contact log, and they noted that the Society would not take a position. Supervisor G’s testimony provided additional information in why they decided not to take a position. He said that there was a preliminary family court order in place, and given where they were in the investigation, they would not take a position at that time.

19The contact log of March 22, 2023 from 15:27 to 15:31 indicates that the worker told the Applicant that the Society would not be taking a position and would neither instruct her to send the children nor ask her to withhold the children. This does not suggest that the Society was telling the Applicant to send the children to their father. It confirms the two Society witnesses’ testimony, and the documentary evidence in the log, that the Society did not take a position. I do not find that this suggests that the Applicant was not heard, nor does it suggest that she was not given reasons for the Society’s decision.

Report from SCAN

20The next contact log entered is from 14:52 to 15:02 and related to worker J’s conversation with her supervisor where they agreed that a police officer would complete the interview with the child given her expertise in interviewing children.

21The Applicant testified that there was missing information on physical abuse and that it was very important to the file on sexual abuse. She said that if both types of abuse exist, they should both be confirmed. The Applicant said that worker J told her that verifying physical harm was not necessary as sexual abuse was already important and it was not necessary to verify both. Counsel for the Applicant submitted that physical abuse was a result of the denial to sexual abuse and therefore they have an interconnection.

22The Applicant said that she received a formal technical report of the March 22, 2023 examination at SCAN on May 26, 2023. She submitted that the Society had failed to provide certain information to medical team. She said that the doctor based his information on a Society certificate. For example, she said that the report indicates that the children were at her home on the Monday, but that they were with their father on the Monday. She said that she was not asked to attend any meeting between the hospital and the Society and submits that the Society spoke with the hospital without her input. The Applicant said that she does not agree with the May 2023 report. She said that she was there during the examination and denies that her son said that the bruise was not from being pushed into a wall as indicated in the report.

23I understand that the Applicant does not agree with the doctors’ evaluation that abuse could not be confirmed. However, I am not in a position to make any determination on whether the evaluation of medical professionals was right. The issue is whether the Society heard the Applicant and whether they provided reasons. In the case, the Society relied on medical professionals to determine whether any marks or bruises were signs of abuse. I find that neither the Society, nor the Applicant have the expertise to make such a determination, nor should their opinions take precedence over medical professionals.

24Worker J testified that she received a phone call from the doctors at SCAN when the completed their examination of the child. The contact log indicates this call lasted from 14:29 to 14:36, on March 22, 2023. The log indicates that the doctor “noted that it would be difficult to determine based on the injuries whether they were the cause the child’s own activity or injuries which were caused to him.” I find that this shows that the Applicant was provided with reasons that would lead to the non-verification of abuse.

Interview with the Child Youth Advocacy Centre (CYAC)

25The Applicant said that she had a support person with her at the CYAC interview because she said that she previously felt that her allegations were not taken seriously. She said that this was her first interview and that she was never interviewed by the Society. She said that she felt that there was no investigation, just emails.

26The Applicant said that worker J saw the children when they were interviewed by the police but that she did not ask them any questions. Worker J testified that the interviews of the Applicant and the children done at the CYAC were joint interviews with the police. Typically, according to the joint protocol, most often it is the police who conduct the interviews while the Society observes. Worker J said that she explained this to the Applicant. Contact logs from 9:49 to 11:02 and 11:02 to 13:02 on March 29, 2023 are the notes taken by worker J during the interviews with the children.

27There is another contact log from 15:33 to 17:10 on April 27, 2023 which includes notes from the interview with the Applicant at CYAC. These logs show that the Society had an opportunity to obtain the views of the Applicant through this process. Worker J testified that in a pre-interview, she introduced the Applicant to the officer doing the interview. While the interviews were done by a police officer, worker J observed from another room. This was done according to a joint protocol and there is nothing to suggest that there were any deficiencies in the interviews. I find that the Society had the opportunity to hear the Applicant through the interview.

Communications with the Applicant

28The Society presented several contact logs as evidence that the Society communicated often with the Applicant about her file. Counsel for the Applicant submitted that the Applicant did not deny the communications with the Society but indicated that her primary concern is that she was not heard regarding the physical abuse of the children and having access to a worker who speaks French.

29In regard to the Applicant’s ability to be heard about allegations of physical abuse, the examples above do not lead me to find that the Applicant was able to show that the Society failed in that regard. Being heard does not equate to having a decision in your favour. I understand that the Applicant does not agree with the decisions taken by the Society but she was not able to show that she was not heard.

30As for the access to a French worker, I note that in the Application, the Applicant did not raise any issues regarding the Society’s French-language services during the time the Society had the file open. I note that the Application indicates a request for a French language interpreter for the present hearing. The Applicant added “I need interpreter only if it’s a court. When Ideal with workers with advanced English.” This request is specific to this hearing and does not suggest that there was any denial of French language services by the Society.

31I note that the Applicant said that she was refused a French language worker. Worker J and supervisor G both testified that they were not asked by the Applicant for a French-speaking worker. Despite having many communications by email, the Applicant did not submit documentary evidence that she made this request. Worker J testified that the Applicant was asked whether she required an interpreter about three times. She said that in a phone call on April 18, 2023, she asked about the need for a French and said that the Applicant replied that she would get back to her. She said that she followed up with the Applicant by text on April 25. When the Applicant did not respond, worker J testified that she followed up again on April 26 and the Applicant respond via text that an interpreter was not needed. She said that prior to the interview on April 27, 2023, the Applicant was asked and she said that she did not need an interpreter. The Applicant said that she may need things to be repeated as English was not her first language.

32I note that the Society informed the Applicant on June 8, 2023 that the program to support the children did not have any clinicians who could provide service in French. The Applicant wrote an email to worker J on June 8, 2023, indicating that the children are more fluent in English and so no French service is required. This evidence shows that the Society was raising the issue of French language services with the Applicant. As indicated above, the Applicant did not raise any complaints in this regard in it Application to the CFSRB. I do not find that there have been any failures by the Society’s in regard to offering the Applicant access to French language services as the evidence suggests that the Applicant consistently indicated that such services were not required.

33The Applicant testified that she did not accept calls from the Society and just communicated over email. She said that she did this due to a language barrier. She said that she has difficulty with technical language and sometimes she doesn’t understand. The Society witnesses acknowledged that they knew that the Applicant preferred to communicate in writing. There are logs where the Society indicates that they tried to connect with the Applicant by phone. There is evidence that the Applicant contacted the Society by phone, such as on March 22, 2023 at 15:27. Worker J said that at the beginning, many of the communications were by phone but then became more by email and text message. I find that the evidence shows that Society made reasonable attempts to communicate in writing.

Sufficiency of reasons

34The Society’s response indicates that on May 16, 2023, the Society verified the sexual abuse and did not verify the physical abuse. The Society submitted an email from May 24, 2023 as evidence. In this email, worker J writes:

I also understand, based on your most recent email(s), that your preference is to communicate with me via email at this time. Ordinarily, I would be contacting you to share the results of CAST’s investigation; however, I am providing you with this information via email pursuant to your request. CAST has verified the child protection concerns around sexual abuse. CAST has not verified the child protection concerns relating to the worries around physical force or maltreatment. Some of the factors considered when making this decision include but are not limited to: The severity of the injuries, the evidence around the use of excessive force, the consistency of the disclosure made.

35According to the worker’s email, the father did not have contact with the children at that time and the Society was making arrangements to support the Applicant and the children with counselling.

36In her email response to worker J on May 26, 2023, the Applicant questioned why the Society did not check for physical abuse and questioned how it was not verified. Worker J responded that:

A verification decision is made by myself and my supervisor during a panel discussion that includes myself and my supervisor as well, an equity lead, an additional supervisor and the Supervisor of Service Administration. As I mentioned in my previous emails, we review all the information from our assessment, and consider the severity of the injuries, the evidence around the use of excessive force, the consistency of the disclosure made.

37The Society submitted that the issue is whether Applicant was given reasons for verifying sexual abuse but not physical harm, not whether she agreed with the decision. The Society submits that an email chain from June 2 to 5, 2023 submitted as evidence explains further why physical harm was not verified.

As you know, the children were both interviewed with me present at the Child and Youth Advocacy Centre on March 29, 2023. While the interviews were conducted by the CYAC officer, I was present, observing the interviews as per the joint investigation protocol. The information shared by your children during these interviews was taken into account in making the verification decision. In addition, all information received from the school regarding concerns has been followed up upon. The children were also already physically examined by SCAN as you know on March 22, 2023.

38Supervisor G’s affidavit provides more detail on the verification conference held on May 16, 2023:

a. During the conference, the allegations regarding the reported physical and sexual harm were discussed. Following this discussion, a decision was made based on a balance of probabilities to not verify the allegations related to the physical harm. Some of the factors that were considered when making this decision were the severity of the allegations, the outcome of the medical assessment, evidence around the use of excessive force, the consistency of the disclosure and the Society history with the family.

b. The allegations regarding sexual harm were verified. Some of the factors that were considered when making this decision included the clear consistent disclosures, the apparent trauma related responses, the use of child appropriate words and the spontaneous disclosure made in the midst of the investigation about physical harm.

39In her testimony, worker J stated that while they conduct a joint investigation with the police, the Society makes its own decisions with respect to verification. She said that they take in all information, and said that the decision to lay charges is relevant. When asked more specifically about the reasons for not verifying physical abuse, she said that it was a decision made by a panel, so not just one person’s perspective. She said that they rely on their standards for verification process. For example, in regard to the injuries, what was the nature and severity? Were they scratches or broken bones, was there head trauma? She said that based on the information the Society received b SCAN, the injuries were not severe. She said that they also considered the statements by children about how the injuries occurred. They looked at what happened in the moment that the injuries happened. They considered the credibility of the information and whether the children were consistent. For the factor of excessive force, the Society could not determine that there was excessive force.

40I acknowledge that a witness for the Applicant testified that she was had taught the Applicant’s son and had been his tutor. In her testimony, she spoke about what she noticed about the Applicant’s son from Spring 2023 to April 15, 2024. She said that the child had shared information with her and when he told her that there were adults involved, including the court, she told him to speak to adults. She said that she didn’t raise this with school officials or the Society in 2023. She said that when the child raised concerns in Spring 2024, about one year after she first noticed concerns with the child, she contacted the Society on April 15, 2024. She said that the Society asked for certain details about the family. She said that she asked her vice-principle for the information but he said that there was already a file and that other people in the school had been involved. While this witness testified about her concerns for the child, her testimony has little weight in this proceeding as it does not deal with the issues before me. This witness did not speak about whether the Society heard the applicant or provided her with adequate reasons.

Conclusion

41The onus was on the Applicant to show that it was more likely than not (on a “balance of probabilities”) that they had not been heard or provided with meaningful reasons. I find that the Applicant has not met this onus.

42Based on the analysis above, I find that the Society presented evidence through documentary evidence and testimony of the witnesses to show that they responded to the Applicant’s allegations and maintained communications with the Applicant throughout the process, including involving other support services.

43I find that the Applicant’s allegations that the Society did not hear her are based on her expectations that the Society do more – for example attend the SCAN appointment, conduct their own interviews with the children and the Applicant and take a position on parenting arrangements. I find that the evidence shows that the Society acted appropriately and followed protocols, and followed up as required.

44As for the sufficiency of reasons, I find that the Society has provided the Applicant with clear reasons for their decisions. The reasons are found in the documentary evidence and were also articulated in testimony.

45In the closing submissions, counsel for the Applicant focussed on the perceived failures of the Society to conduct their own interviews with the children, on the impact of the allegations on the children and in not taking a position on the parenting arrangements. The submissions also included a request for costs against the Society. Such remedies are not within the jurisdiction of the Board.

ORDER

46The Application is dismissed.

CONFIDENTIALITY ORDER

47Pursuant 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.