Barry Lewis, Commissioner – 1 –September 27, 2010
September27, 2010
Barry Lewis
Commissioner
Commission to Promote Sustainable Child Welfare
401 Bay Street, Suite 2108
Toronto, ON M7A 0A4
Dear Mr. Lewis:
The Elementary Teachers' Federation of Ontario (ETFO) has prepared the following written submissions for your Commission’s deliberations. In addition to these submissions, ETFO would be pleased to meet with you and/or your Commission to discuss ETFO’s concerns in more detail.
Our focus herein is on the current practices relating to child protection investigations involving teachers and the impact they have, not only on the individuals and school boards affected, but also on CAS resources. Bearing in mind the mandate of the Commission and the challenges and concerns identified in its report Towards Sustainable Child Welfare in Ontario, it is our view that the current model of CAS investigations involving teachers is not sustainable: the costs are staggering, there is little consistency in the conduct of the investigations and standards applied, and finally, there is no accountability in the process.
ETFO IS COMMITTED TO THE WELFARE OF CHILDREN
At the outset, we wish to state that ETFO is a prominent supporter and advocate for children’s rights. We believe that any form of abuse of children, including bullying, is unacceptable in our society. Given their role as teachers, ETFO members are front line workers in the protection of children in the province. They are often in a position to identify students who may be in need of protection and they act to ensure that any such concerns are reported to the CAS. Unfortunately, teachers themselves may become the subject of serious allegations concerning their own conduct with children.
We are strong proponents of a coherent, strong and transparent child protection system in our province. At the same time, those accused of violating children’s rights in the education system are entitled to a balanced, fair and sustainable approach to child protection. In our view, the current legislative framework and child protection system is deeply flawed as it relates to in school incidents and allegations against our members.
INTRODUCTION TO ETFO
ETFO is the professional and protective organization representing over 76,000 teachers, occasional teachers, and education professionals employed in the public elementary schools of Ontario. All public elementary teachers in Ontario are active members of ETFO provincially, and also members of one of its 66 locals across the province.
ETFO strives to develop programs and services that both protect and enhance the working lives of its members in the education system. It works continuously to provide an environment that celebrates the diversity of its members and the students in their care. In addition to its internal work in support of members, ETFO reaches out to the broader community to foster a climate of social justice in this province and beyond.
ETFO’S PROTECTIVE SERVICES
ETFO is recognized as a trade union under the Labour Relations Act. In addition to fulfilling its legal obligations to its members under that statute relating to collective bargaining and grievances arising under collective agreements across the province, ETFO offers Professional Relations Services (PRS) to its members in ETFO’s Protective Services Area.
PRS staff are there to assist ETFO members who are experiencing professional difficulties, and to help prevent such problems from arising in the first place. Educating children is a complex task carried out in a highly regulated and litigious climate. Through intervention, advocacy, education, and advice, professional relationsstaff advise members of their options, responsibilities, and rights related to a wide variety of workplace issues.
While there are many areas in which PRS staff provide support to ETFO members, in this submission we focus on the issues confronting teachers and other ETFO members facing allegations against them involving Children’s Aid Societies (CAS).
HOW THE CAS BECOMES INVOLVED WITH TEACHERS AND OTHER ETFO MEMBERS
Due to the nature of teaching, situations often arise in the school setting that result in allegations being brought to the CAS concerning teacher conduct towards students. These allegations are then investigated by the local CAS that receives them. Given the serious impact that such allegations can have on a teacher, both personally and professionally, ETFO provides legal assistance to its members who are the subject of
such investigations. Accordingly, ETFO has been involved with CAS’s across the province and would like to share its perspective and information with the Commission concerning ETFO members’ interactions and experience with the CAS’s in Ontario.
THE ISSUES FROM ETFO’S PERSPECTIVE
As set out in our previous correspondence to the Minister[1] we have raised a number of issues which will be addressed below in more detail.
The sharp spike in reports and investigations involving teachers and “in school” events.
In recent years, ETFO members have reported experiencing increasing numbers of allegations against them stemming from in school incidents, and an increase in the number of CAS investigations involving ETFO teachers. In 2007, as a result of growing member concern, ETFO began compiling reports and statistics where possible, of the number of CAS investigations involving school incidents. As part of that anecdotal evidence, ETFO also began tracking the length of the CAS investigation, and its outcome. As far as ETFO is aware, there is no other governmental or CAS agency tracking or reporting of the number of CAS investigations involving school incidents, despite the increasing impact on the education system of such investigations and despite the spiralling costs across the province of the existing CAS system. This gap in monitoring will be addressed in more detail below.
ETFO’s statistics were voluntarily compiled due to member and local reports, and for that reason, likely do not represent the entire number of CAS investigations involving ETFO members or the duration and outcome of those investigations. ETFO began attempting to track numbers in 2007, but admits that the numbers are not rigorously compiled. The following figures represent this tracking effort.
2007 / 2008 / 2009 / 2010 *147 / 141 / 190 / 94
*January to July 31, 2010
This tracking demonstrates that a spike of cases occurred in 2009 and ETFO is predicting the same high levels for 2010 based on numbers to date. We would also note that these numbers do not include investigations concerning teachers or other workers in the education system who are not ETFO members, for example, those working in the secondary school system or for the catholic school boards. Were those investigations included, the numbers would clearly be much higher. This spike in investigations has been accompanied by a growing dissatisfaction with the process (or lack thereof in many cases) adopted by CAS agencies in conducting their investigations.
Economic Impact of CAS Investigations
The economic impact of CAS investigations is widespread. It involves the cost to the education system as a whole, as well as the financial implications on individual teachers, particularly Occasional Teachers. Depending on the length of the CAS investigation, the economic cost of CAS investigations can become quite large for both the school board and the individual teacher.
Although we do not have access to information concerning the corresponding costs to the CAS, and indeed are not even aware that such information is tracked, there is obviously a cost to the CAS, both in terms of the human resources and the actual dollars required to conduct and document these child protection investigations.
Teachers on Permanent Assignment (“permanent teachers”)
Currently, a permanent teacher against whom a complaint has been lodged with a local CAS under the Child and Family Services Act[2] is notified by his or her principal that there has been an allegation. Usually, no information is provided other than the fact that a report has been made and the CAS is investigating. In most cases, the teacher is then removed from the classroom, and is suspended from teaching until the CAS completes its investigation, following which the school board may conduct its own separate investigation into the matter prior to returning the teacher to work.
Although collective agreements do not currently enshrine pay protection for teachers involved in CAS investigations, most, but not all, school boards in the public elementary panel suspend permanent teachers with pay pending the outcome of the CAS investigation. In any particular school board, this may be a matter of long standing practice. In such instances there is no personal financial cost to the teacher; however, there is a significant financial cost to the school board. When a permanent teacher is
suspended, the school board is then required to fill the permanent teaching position with a replacement, or Occasional Teacher. This results in the school board paying two (2) teachers at the same time for the same teaching assignment. Occasional teachers replacing permanent teachers on suspension during a CAS investigation are commonly paid a daily rate, set out in their collective agreement, which is calculated in relation to the permanent teacher’s salary grid.[3]
Obviously, in the context of the high number of CAS investigations, and the teacher suspensions relating to them, there is an increasing financial burden on the school board, which has a budget from the province for permanent teacher salaries and for replacement teachers. The cost can be in excess of $400 per day, which can become a significant cost for the school board depending on the number of days taken to complete each investigation and the total number of CAS investigations involving employees of that board in any given year. In our experience, a CAS investigation can range anywhere from one day to eighty days or more.
The chart below represents the approximate length of CAS investigations conducted in the period between January and July 2010:
1-19 Days / 2320-50 / 35
51 or more / 12
* These figures exclude cases where the investigation is ongoing or length of the investigation is unknown.
Economic Impact on Occasional Teachers
It is ETFO’s position that all teachers must be paid during a CAS investigation as a matter of fundamental fairness. As noted above, while this is generally the accepted practice for regular teachers, the same is not true for occasional teachers who are on call, and who fill in for daily short term and long term assignments.
Usually, outside of situations involving CAS investigations, occasional teachers are called in to replace regular teachers who are ill, on special assignment, on training or professional learning assignments or on other projects integral to the education system.
The use of occasional teachers to cover CAS suspensions strains the system and existing budgets and diverts this important resource from its intended use. While this might be considered simply the “cost of doing business” and while it does provide increased work for our occasional teacher members, we believe the costs are unsustainable, and divert important resources from badly needed programs in our education system.
Most, but not all, occasional teachers faced with a CAS allegation are suspended until the conclusion of the investigation, without pay. These teachers have no income protection during this time, as they are usually prevented by the school board from returning to teaching until cleared by the CAS. While some collective agreements have recently enshrined protection for occasional teachers suspended from their assignments due to CAS reports, this necessary protection has been vigorously resisted by the majority of school boards around the province.
Depending on the length of the investigation, which as indicated above can range greatly, the economic impact on an occasional teacher from a CAS allegation and investigation is severe.
Non-Economic Costs
In addition to the personal, economic cost of a CAS investigation, teachers report suffering reputational damage and emotional distress during CAS investigations. According to our members, the longer the investigation takes, the greater the impact it has on them. While not quantifiable, the devastation caused by the current system should be taken into account.
Lengthy Investigations
When a teacher is suspended as a result of a report to the CAS, generally the teacher is required to leave the school immediately. No explanation is given to the students or other colleagues. For a teacher whose calling is the care and nurturing of students, an allegation of child abuse or neglect is shocking. The teacher’s abrupt absence can cause gossip and innuendo to circulate in the school and the wider community, including among school board officials.
In addition, these CAS investigations cause disruption to students and teachers, which can range from several days to, in some cases over 60 days or more (see the chart above on page 5).
Student programming is affected by these unduly long investigations. While occasional teachers are skilled at replacing regular teachers and following the established programs, there is no doubt that prolonged absences of the regular teacher have an impact on the students. Special needs students and younger students in particular, may suffer more from the sudden and unexplained absence of their regular teachers. In addition, the ability to provide detailed and consistent evaluations of students’ academic progress can be negatively affected by lengthy teacher suspensions. Indeed, school boards routinely assert that even relatively minor absences for sick leave have a disruptive effect on students and programming.
ETFO members have also had some disturbing experiences where the manner in which the CAS worker conducted the investigation and interviewed students has prejudiced the teacher’s relationship with his or her students, and made it even more difficult to return to the classroom upon completion of the CAS investigation. In some cases, the mere fact that the CAS worker is interviewing students about the teacher harms the teacher’s reputation, even in cases where no concerns are verified.
THE LEGAL FRAMEWORK FOR CAS INVESTIGATIONS
Private Nature of CAS Agencies
CAS agencies are private, incorporated, not-for-profit agencies run by volunteer boards of directors in communities across the province. Currently, these agencies are funded entirely by government transfer funds yet CAS agencies remain largely ungoverned by the usual controls applied to government funded services, agencies, boards or commissions.
More specifically, CAS agencies are not bound by provincial ombudsman scrutiny, provincial or municipal freedom of information standards, or other formal scrutiny in their day to day operations or investigative conclusions. There is no obligation on CAS agencies to report on the nature of the incidents they investigate, how long they take to do so, or what methods they employ in their investigations. CAS agencies are not required to provide information to the tax paying public about family based interventions or school based interventions and investigations. There are simply no formal controls whatsoever on these agencies and their operations.
Yet, the public service they deliver in the protection of youth in our society is of the highest importance to our communities, including the education community.
Ombudsman’s Report
The Ontario Ombudsman’s annual report 2009-2010 (“The Report”) which was recently released highlights that Ontario is the onlyprovince in Canada whose Ombudsman does not have oversight of child protection services. Under the current system in Ontario, the Ombudsman does not have the authority to investigate or oversee CAS’s. The Report notes that in 2009-2010, the Ombudsman’s office had to turn away 296 complaints about CAS’s. The Report further notes that in 2008-2009, 2007-2008 and 2006-2007, the Ombudsman’s office received 429, 431 and 609 complaints/inquiries respectively about CAS’s but was not able to take any action concerning the complaints/inquiries.
It is ETFO’s view that the lack of oversight and government control of these private agencies has led to the following problems:
- inadequate legislative structures to fulfil child protection needs;
- inadequate standards and procedures for investigations;
- ad hoc and widely divergent approaches to role fulfillment;
- lack of procedural fairness in investigations;
- insufficiently staffed offices and/or insufficiently trained personnel which leads to delayed and inadequate investigations;
- lack of transparency and reporting;
- spiralling costs.
It is our hope that this Commission will look at the issue of the sustainability of CAS agencies in the broader context. This is not simply a question of placing limits on the funding of individual agencies, or requiring them to report on how they spend their tax payer allotted monies. While increased financial controls are urgently required, it is important to examine all aspects of how these agencies currently carry out their governmental obligation of child protection to gain insight into why the current system is unsustainable.