VN v. Catholic Children’s Aid Society of Toronto, 2024 CFSRB 8

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

VN Applicant

-and-

Catholic Children’s Aid Society of Toronto Respondent

AMENDED DECISION

Adjudicator: Daniel McSweeney Date: January 31, 2024 Citation: 2024 CFSRB 8 Indexed As: VN v Catholic Children’s Aid Society of Toronto (CYFSA s.120)

APPEARANCES

VN, Applicant Jordana K. Baumgartner, Paralegal

Catholic Children’s Aid Society of Toronto, Respondent Rachel Buhler, 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 Complaint was found eligible for review under sections 120(4)4 and 120(4)5 of the Act: the Applicant was not given the opportunity to be heard and represented when decisions affecting his interests were made, or a chance to be heard when he raised concerns about the services he is receiving; and the Society is alleged to have failed to provide the Applicant with reasons for a decision that affected his interests.

3The Applicant is the father of two sons A and EA (the “Children”). The Applicant immigrated to Canada along with his then wife and Children. Shortly after arrival, the Applicant’s wife alleged that the Applicant had been physically abusive to her before they came to Canada, and that he continued to be financially abusive to her. The Children and their mother left the family home for a shelter.

4The Respondent became involved with the family and verified the risk of emotional harm to the Children due to exposure to partner conflict. Respondent staff supported 2 access visits between the Applicant and the Children despite not having any authority to address issues of custody and access.

5Since the Applicant and his ex-wife’s separation, they have continued to have disputes regarding custody and access some of which involved police.

6Since the separation, the Children alleged that the Applicant had used inappropriate discipline. For example, on July 14, 2020, Child “A” returned from a visit with his father and reported that his father had hit him on the head as a form of punishment. In October of 2020, Child “A” alleged in an interaction with a police officer that his father had slapped his face some months before. The investigating police officer indicated that he did not have any safety concerns with the welfare of the Children; however, he felt that “A” was being influenced by his mother.

7Child “EA” reported 2 incidents including being thrown into a wall and being hit on the arm with a hammer. The Applicant was charged with assault and assault with a weapon. The Respondent verified a risk of harm based on inappropriate use of discipline in relation to “EA”; however, it did not verify the allegations related to “A”.

8The Applicant identified the following 8 Issues/Concerns in the Complaint:

1. The Applicant alleges the Respondent did not hear his concerns that investigating workers SD and NM were not impartial in conducting their investigation and were biased against him and were supporting his ex-wife in obtaining custody of their two Children;
2. The Applicant alleges that the Respondent did not hear his concerns regarding the Children’s welfare with their mother when the mother removed them from the family home, taking them to a shelter, and unilaterally changed the Children’s school;
3. The Applicant alleges that the Respondent did not hear his concerns regarding the impact on the Children being removed from his care by the mother and the impact on the Children of the parent’s custody dispute and of extended periods of no access between the Children and the Applicant stemming from a dispute over custody and access;
4. The Applicant alleges that the Respondent did not seek or hear his explanations for allegations of abuse made by the Children against him and accepted negative information provided by the Children’s mother regarding him without providing him an opportunity to be heard;
5. The Applicant alleges that the Respondent did not hear his explanation regarding allegations that he was physically abusive to the Children in the course of a 2021 abuse investigation, and that the Respondent failed to obtain accurate information from the Children regarding the allegations because they interviewed the Children in English, which is the Children’s fourth language;
6. The Applicant alleges that the Respondent failed to interview him or hear his explanations regarding his alleged physical discipline of the Children on or about October 2018;
7. The Applicant alleges that the Respondent failed to hear his requests to speak with a supervisor regarding his experiences with his workers and his perceptions that workers were not impartial and were biased against him; and
8. The Applicant alleges that the Respondent did not provide him with reasons for their decisions and actions in their investigations of allegations that the Applicant was physically abusive to his Children, and did not provide him with reasons for why they validated these allegations of physical abuse despite the Applicant being acquitted of charges of physical assault in criminal court.

Hearing Process

9The hearing was held via Zoom. The Applicant was represented by a Paralegal and was his only witness. The Respondent called “SD” the Child Protection Worker (Worker) who was involved with the family in 2018 and who was also involved in investigating the allegations made by “EA” in 2021. The Worker provided a will say statement which was sworn to and formed the bulk of her evidence.

THE LAW

10Section 120(4)4 of the Act indicates that the following matters may be reviewed by the Board:

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

11Section 15(2) of the Act confirms that:

Service providers shall ensure that children and young persons and their parents have an opportunity to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving

12Section 120(4)5 of the Act indicates that the following matter may be reviewed by the Board:

“Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.”

ANALYSIS

Preliminary Observation

13After having considered all the evidence, it became obvious that there was a degree of miscommunication between the Applicant and Respondent staff related to the roles and responsibilities of child protection services in Canada. This challenge persisted throughout all the interactions between the Applicant and Respondent Workers, despite the Workers’ best efforts to explain their roles and responsibilities. In fact, in his e-mail of October 13, 2018, the Applicant indicated that he: “really want to understand what’s the role of CCAS?”.

14As a recent newcomer, the Applicant’s ability to clearly communicate in English did not equate to his knowledge of the child protection system in Canada. While the 2 Workers made attempts to explain their role and the processes related to the various investigations, the Applicant did not have a clear understanding of the Respondent’s role.

15For example, in her response to the Applicant dated October 30, 2018, Worker NM indicated: “My job as a child protection worker is to work with you and your family and help support you as well as addressing any ongoing child protection concerns. This entails em [sic] to follow up with any disclosures or reports made, such as the one made by your son A in regard to the use of inappropriate discipline”. I did not have any evidence before me of the Worker explaining to the Applicant what “follow up” on disclosures would include and his involvement in the follow-up process.

16Worker SD testified that she explained that the Respondent’s role was not to become involved in issues of custody and access; however, her involvement in access shortly after the Children went to the shelter seemed to muddy the waters regarding the Respondent’s role in access in the Applicant’s mind.

17The communication concerns led to a mistrust between the Applicant and Respondent Workers which exacerbated attempts to give and receive information, and which resulted in much of the communication between the Applicant and Respondent being refused or going through the Applicant’s lawyer.

18As noted below the lack of clarity in communication and mistrust underpinned most of the Issues/Concerns in the Complaint and resulted in the Applicant feeling that he was not heard or provided adequate explanations for the Respondent’s actions and that and Workers supported the Children’s mother over him.

19The Respondent’s position is that the Applicant disagrees with the verification decisions. He has been provided with an opportunity to have his concerns heard and he has been provided with reasons for the Respondent’s actions and decisions.

Issue/Concern 1. Bias allegations against 2 Workers

20The Applicant testified that the 2 Workers were biased against him as they supported the Applicant’s wife removing the Children from the family home and obtaining custody of the Children.

21The Applicant testified that SD was biased as she was involved in assisting his ex-wife and Children in leaving the family home. In addition, the Applicant testified that SD’s failure to provide him information regarding the Children’s safety, health and schooling, and location, and SD’s failure to become involved in access was further evidence of bias.

22SD testified that she listened to the Applicant’s concerns regarding the Children and their removal to a shelter by their mother. SD testified that she assisted the Children’s mother with transportation to the shelter given that she did not have the resources to make the move on her own; she did not have a telephone; and she was unsure of the Applicant’s work schedule. SD explained to the Applicant that the Respondent could not become involved in access and custody issues as these were issues to be addressed in Court.

23SD testified that the Applicant never raised issues of bias or impartiality with her.

24I find that the Applicant did not provide sufficient evidence to support his allegation that he informed SD that she was biased against him and that she did not hear the allegations. As such, I find that SD did not fail to hear the Applicant’s allegations of bias.

25The Applicant alleged that Worker NM was biased against him as evidenced by her letter of October 12, 2018, cautioning him to refrain from using any forms of inappropriate discipline. The Applicant’s e-mail response to the letter sent the next day alluded to the Applicant’s belief that the Respondent had sided with the Children’s mother. It stated: “It is a shame that the CCAS started playing her game in her despair to try to find evidence for her false allegations in order to have a litigious advantage.” The e-mail did not make clear allegations of bias related to any particular Worker and did not provide sufficient information regarding how CCAS allegedly started playing his ex-wife’s game. As such, I find that, as of the time of the e-mail, the Applicant had not clearly complained that Respondent Workers were biased against him in supporting his ex-wife to get custody of the Children.

26I do find; however, that the issue of the caution letter raised concerns related to NM’s partiality. Firstly, I note that the letter was issued before NM had an opportunity to speak with the Applicant regarding any allegations of inappropriate discipline. The letter did not indicate that NM had not finalized her inquiry and had not spoken with the Applicant. NM could have used a clarifying clause such as: “until such time as I speak with your and finalize my investigation”, before indicating that the Applicant was being cautioned.

27I considered the contents of the letter. I note that the letter stated: “I would like to caution you to refrain from using any forms of inappropriate discipline with either of your children”. By dictionary definition the word refrain means to stop oneself from doing something. The word caution as a verb means to say something as a warning. By using the word refrain in her letter, NM appeared to make a finding that the Applicant had used inappropriate discipline before she had an opportunity to speak with him about the allegations.

28The Applicant cited this letter as evidence of NM’s bias, and he raised the issue with NM some 2 years later in an e-mail exchange with her on August 5, 2020. The Applicant stated: “I am sorry to say that [sic] but this brings again on the table my doubts regarding your partiality that I have already expressed during our last Friday July 31 meeting with the Police Officer. So, moving forward, if I have to collaborate with CCAS in the future, I would prefer to interact with someone else than you. I have nothing personal against you….I just want to be more comfortable whenever dealing with CCAS in the future.”

29NM replied: “I believe there was some miscommunication, when I was referring to you being cautioned I was referring to you being educated and cautioned on the canadian [sic] laws on discipline with children. Hope we could clear this up, however, if you would like to continue to not want to work with me. I can speak with my supervisor.”

30Given this e-mail exchange, I find that the Applicant had put NM on notice regarding his concerns about her impartiality. The Applicant testified that no additional action was taken as a result of his complaint. As such, I find that the Applicant’s allegations of bias by Worker NM were not heard.

Issue/Concern 2: Concerns related to wellbeing of the Children while in the care of their mother

31The Applicant alleged that Respondent workers did not hear his concerns about the wellbeing of the Children after they were taken to the shelter by their mother.

32The Applicant testified that over several meetings he spoke to SD about the allegations of harm made by his ex-partner; his concerns about the Children’s living conditions and their attendance at school; his concerns regarding access to the Children; and the fact that he was not a risk to take the Children back to their home country. The Applicant indicated; however, that SD seemed to focus the conversation on his ex-wife and her allegations.

33The evidence before me confirms that SD spoke with the Applicant on several occasions, including an interview on June 14, 2018, regarding the allegations and his concerns related to the Children. SD testified that the Applicant had informed her of his concerns related to the Children shortly after they were taken to the shelter. She heard the Applicant’s concerns and statements about his ex-wife’s allegations of domestic abuse during his visit to her office on June 14, 2018. The Applicant denied any physical abuse or controlling behaviour but indicated that the marital relationship was strained. SD heard the Applicant’s concerns regarding the children’s living conditions at the shelter and their schooling. SD also heard the Applicant’s concerns regarding access to the Children.

34SD explained to the Applicant that she could not provide him with the addresses of the shelter and the school. She advised the Applicant to speak with a lawyer and to proceed to court to address issues of custody and access.

35The evidence before me confirms that SD heard the Applicant’s concerns regarding the children and their health and welfare after being removed to the shelter. The Applicant’s concerns regarding access were heard, and SD took it upon herself to arrange 2 access visits between the Applicant and the Children.

36The Applicant also provided additional evidence that he raised concerns related to the Children in the care of their mother with NM in an e-mail dated October 13, 2018. The Applicant alleged that the Children’s mother had beaten the Children in the past and has locked up “A” in his room as discipline. The letter also outlined “A’s” concerns regarding the clients and amenities at the shelter, and the fact that he was removed from school. The Applicant also expressed concerns with the future prospects of the Children as Black boys being raised by a single woman. The allegations in the e-mail came well after the Children moved to the shelter with their mother in May of 2018 and the verification conference of June 20, 2018.

37I find that the allegations reported to NM came well after the Applicant reported his concerns with the removal of the Children and their schooling in June of 2018. As such, these allegations fell outside the timeframe of Issue/Concern 2.

Issue/Concern 3: Failure to hear concerns regarding impact of children being removed and extended periods without access

38The Applicant indicated that Respondent Workers did not hear his concerns regarding the impact on the Children of not having access with their father.

39Worker SD testified that she had documented and noted the Applicant’s concerns regarding access. She testified that she informed the Applicant that issues of access and custody needed to be brought before the Court. SD heard the Applicant’s concerns and displayed sensitivity to the Applicant’s need for access by arranging 2 access visits shortly after the Children moved to the shelter. She also explained that child protection agencies did not have jurisdiction to address access issues, as issues of custody and access are decided in family Court.

40Given the notes presented to me, and given SD’s testimony, I find that the Respondent’s concerns regarding a lack of access and the impact of the custody dispute were heard by the Respondent. These issues fell outside the jurisdiction of child protection agencies.

Issue/Concerns 4, 5, and 6: Not being heard regarding allegations of physical discipline against the Children and weighing negative information provided by the Children’s mother

41The Applicant testified that Respondent Workers did not hear his explanations or evidence related to the allegations of his causing physical harm to both Children.

42I considered allegations of harm during the first opening in 2018. I note that Worker SD spoke with the Applicant regarding allegations of domestic violence, which included allegations that the Applicant and his ex-wife had argued in the presence of the Children. SD testified that she spoke with the Applicant on June 14, 2018, during which the Applicant had an opportunity to speak about his previous history and alleged domestic violence in his home country; control and conflict in the relationship; and his response to the Children’s mother’s fear that he would take the Children to their home country. SD testified that she found that the Applicant was credible about the issue of domestic violence; however, she explained to the Applicant that the risks of harm related to the Children being exposed to caregiver conflict were verified. This confirms that the Applicant’s responses related to SD’s inquiries were heard and considered as part of the verification decision.

43I considered the allegations of physical harm cited by Worker NM in her caution letter of October 12, 2018. The Applicant testified that he was not informed of any safety concerns related to his parenting until he received the caution letter. The Applicant testified that this letter was sent to him before Worker NM spoke to him about the allegations. He felt that she had decided the matter based on the statements by the Children and their mother.

44As noted above, the letter alludes to the fact that the Applicant had been using inappropriate physical discipline with the Children and that he should refrain from doing so. In writing this letter before she had an opportunity to speak with the Applicant, NM failed to hear the Applicant’s explanation in relation to the allegations and any explanation regarding the potential veracity of any statements made by the Children and their mother.

45In his response to the October 12, 2018, letter, the Applicant testified that Worker NM did not hear his allegations that the Children’s mother was negatively influencing the Children. I have no evidence before me that these allegations were heard by the Respondent and if the Applicant’s statements about the negative influence were considered; however, I note that the verification of harm decision was made on June 20, 2018, which was well before the October 12, 2018, letter was issued.

46Both Children lodged complaints related to inappropriate physical discipline between 2020 and 2022. I was presented with some evidence and testimony regarding the allegations between 2020 and the interview of the Children in December 2021.

47Worker SD became involved in the investigation of the allegations as she had been assigned to the Child and Youth Advocacy Office. She participated in a joint police interview with the Children on December 6, 2021.

48SD testified that she did not speak with the Applicant about the Children’s allegations until after the interviews with the Children and collaterals were completed. She had spoken to the Applicant only to inform him that the interviews were delayed. She did not speak with the Applicant about the allegations as she wanted to protect him from providing any incriminating information which would reflect badly on him.

49SD testified that it is customary for interviews with victims and witnesses to take place before interviews with the person who has been charged. This ensures the integrity of the investigation. SD also indicated that it was the policy of the Respondent not to gather information from a potential abuser given that anything included in case notes could be subpoenaed and used at Court. SD testified that she informed the Applicant of this.

50On January 5, 2022, SD spoke with the Applicant to hear his perspective on the allegations. The Applicant indicated that, upon the advice of his criminal lawyer, he refused to make any statements to the Respondent.

51Based on the evidence before me, I find that the Applicant had the opportunity to speak with the Respondent on January 5, 2022, and that he directed SD to speak with his lawyer. SD respected this decision.

52Given the Applicant’s statement that he was not going to speak with SD and that she should speak with his lawyer, I find that the Applicant could not support his contention that he was not heard by Respondent staff regarding the 2021 allegations.

53The Applicant indicated that his concerns that the Children were interviewed by police in English without his knowledge or approval were not heard by Respondent staff. Worker SD testified that the Children were interviewed by police on December 6, 2021. She testified that it was the police officer’s decision to conduct the interview in English; however, SD confirmed with the police that the Children were able to understand English. SD testified that the Children’s mother confirmed that the Children did not require an interpreter.

54As the non-custodial parent, and as the potential perpetrator, the Applicant was unaware of the interviews with the Children at the time that they occurred. The Applicant testified that he only learned that the interviews were conducted in English later after receiving disclosure.

55Given that the interview process was directed by the police; and given that the Applicant was not the custodial parent and was considered the perpetrator; and given that the Applicant was unaware that the interviews were taking place at the time, I find that the Respondent did not have a responsibility to ensure that his opinions and preferences regarding the language of the interviews did not need to be heard.

Issue/Concern 7: Request to speak with a supervisor

56The Applicant alleged that his request to speak with a supervisor, particularly in relation to alleged bias by Workers, was not heard. The Applicant testified that, while he knew of the existence of a supervisor based on the October 12, 2018, letter, he did not follow-up with her.

57I note in an e-mail from Worker NM dated August 5, 2020, she indicated that: “if you would like to continue to not want to work with me, I can speak with my supervisor”. There is no evidence before me of any efforts made by NM to follow-up the Applicant’s concerns or to link the Applicant to her supervisor. As such, I find that NM heard the Applicant’s concerns; however, she did not provide an adequate response to the Applicant by failing to follow-up on the Applicant’s concerns. The Applicant was denied an opportunity to have his allegations of bias by Respondent Workers heard by a supervisor.

Issue/Concern 8: Failure to provide reasons for verification findings of physical abuse against the Children

58The Applicant testified that he was never provided with reasons as to why the Respondent verified a risk to the Children related to harm based on exposure to partner conflict. He testified that he only received the caution letter from Worker NM in relation to allegations made against him. He heard from police that he was facing criminal charges; however, he was unaware that the Respondent was involved in joint investigation into the allegations of abuse.

59It is clear from the Applicant’s testimony that he did not understand the link between parental disputes which were occurring in the home and the risk of harm to the Children of being exposed to post-separation conflict. As such, the Applicant felt that the Respondent focused solely on the concerns of the Children’s mother and not on the welfare of the Children.

60SD testified that the Applicant was not provided with a closing letter in relation to the 2018 opening, but that he was informed by her in person that his file was to be transferred to ongoing services. She provided him verbally the reasons for the verification decision and the transfer.

61The issue of whether the Applicant was provided with reasons for the verification of inappropriate use of physical discipline is more complex. The Applicant argued that he had a right to be provided with closing letter explaining why the Respondent verified the various allegations of harm against him, especially given that he had been acquitted on the criminal charges.

62It was clear from his oral testimony that the Applicant was unaware that the Respondent was investigating the allegations of physical abuse in tandem with the police, and that the Respondent would make its own verification finding regarding the allegations raised against the Applicant.

63The Respondent found that the risk of physical harm for “A” were not verified as no recent incidents of physical discipline were reported. The risk of physical harm to “EA” were verified based on the verbal reports of the Child. The Respondent argued that an acquittal at Criminal Court did not necessarily lead to a verification being withdrawn. In this case, the acquittal came after the verification decision was made. The Respondent indicated that it was not a common practice to change verification decisions after the fact.

64The test for sufficiency of reasons was outlined at paragraph 20 of JM v. Durham Children’s Aid Society (CFSA s. 68) 2014 CFSRB 72 states:

What constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A person 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.

65Based on the information before me, I find that the Applicant was not provided with sufficient information regarding why the Respondent verified allegations against him. Despite verbal explanations, the Applicant remains unsure as to the rationale and evidence used to verify the allegations. The Applicant was not provided with any written correspondence explaining the Respondent’s verification findings. As such, I find the Applicant was not provided with adequate reasons for its various verification findings.

DECISION

66Based on the information before me, I find that the Applicant’s allegations of bias and his requests to speak with a Supervisor were not heard by the Respondent. The Applicant was not heard before the caution letter alluding to the use of physical discipline was issued. The Applicant was also not provided with adequate reasons to allow him to understand the reasons for the various verification decisions, and the Respondent’s actions.

ORDER

67The Respondent will organize a meeting with the Applicant (with or without a support person) and Respondent Management (including the appropriate Supervisor) to provide him with an opportunity to express his concerns regarding bias on the part of Respondent Workers. The Applicant will inform the Respondent on or before February 2, 2024, of his intention to participate in the meeting. Should he want the meeting, it will be held on or before March 1, 2024.

68The Respondent will provide the Applicant with written reasons for each verification decision. The reasons will provide sufficient detail so that the Applicant can understand the Respondent’s decision-making process, the thresholds for determining risk and verifying allegations, and how workers weighed the evidence before them. The reasons will also include how the Respondent dealt with allegations of bias on the part of Respondent Staff, and why the verification decision regarding EA was not amended after the Applicant had been acquitted of the criminal charges. The reasons will be provided to the Applicant in writing on or before March 29, 2024.

69The CFSRB will close the file upon notification of the completion of the meeting, and the issuance of the written reasons.

CONFIDENTIALITY ORDER

70Pursuant 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.