Fall 2019

What Do Children’s Aid Societies Need to Know about New CYFSA Privacy Obligations?

stack of papersThree situations in which CASs may be and/or are required to disclose information to the College

When may and when must a Children’s Aid Society provide information, including personal information, to the Ontario College of Social Workers and Social Service Workers without the consent of a child and/or their parents?

On January 1, 2020, new privacy obligations for Children’s Aid Societies (“CASs”) become law. These obligations are set out in Part X of the Child, Youth and Family Services Act[1] (CYFSA). It is important to note, however, that these new privacy obligations do not change the way in which CASs are permitted (and required) to provide information to the College. This article sets out the basics in this regard.[2]

CASs and their employees (some of whom may be social workers and/or social service workers) collect and use personal information about children and their parents. Part X of the CYFSA provides a number of circumstances where CASs may disclose information (including personal information) to the College. Here are three situations that are addressed by Part X of the CYFSA.

Situation #1: An investigation or potential investigation

CASs may disclose personal information (without consent of the individual) to a law enforcement agency to aid an investigation with a view to a law enforcement proceeding, or if the law enforcement agency is considering whether to start an investigation.[3]  The College can be considered to be a law enforcement agency because of its enforcement powers under the Social Work and Social Service Work Act (SWSSWA).

Some examples of this scenario are when the College conducts an investigation that may result in a provincial offence prosecution, an application for a compliance order or a discipline proceeding against a member of the College. In these circumstances, CASs may disclose personal information about one of its employees, and/or a child and/or the child’s parents without their consent in order to aid the College with its investigation.

Situation #2: Formal requests in a proceeding

Another situation where CASs may disclose personal information about one of its employees and/or a child and/or their parent is when there is a formal request for the information by a summons or other similar requirement.[4]

From time to time, the Registrar of the College may appoint an investigator who has a range of powers to conduct their investigation.[5] One of these powers is the ability to make a formal request for certain information. These formal requests may take a number of forms, including a “request for documents,” a “summons” or an “order”.

Failing to respond appropriately or in a manner that obstructs the investigation constitutes an offence.[6] Accordingly, when a College investigator makes such a request to a CAS, the CAS would be authorized under Part X of the CYFSA to provide the information requested and is required by law to provide it.

Situation #3: Other laws

Another situation where CASs are permitted to disclose personal information under Part X of the CYFSA is when other laws permit or require CASs to do so.[7]

The SWSSWA is an example of a law that requires CASs to disclose information to the College in certain situations. In particular, CASs must report when an employee or a former employee who is a member of the College: (a) has been terminated due to professional misconduct, incompetence or incapacity;[8] (b) has resigned but their employment would have been terminated due to professional misconduct, incompetence or incapacity;[9] or (c) has been convicted of an offence under the Criminal Code involving sexual conduct.[10]

Part X of the CYFSA does not change any obligations that CASs have under other laws. In fact, Part X clarifies that these rules continue to exist.

Conclusion

The College’s mandate is to serve and protect the public interest. This includes protecting vulnerable children and youth from harm. Part X of the CYFSA permits Children’s Aid Societies to provide information (including personal information) to the College in the three situations we have provided information and, in certain circumstances, the SWSSWA requires Children’s Aid Societies to do so.

The situations we have presented are provided for information purposes only. If you have any questions about Part X of the CYFSA or any of the issues raised in this article, please do not hesitate to contact the College by email through communications@ocswssw.org.

 


 

[1] Part X of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA).
[2] This article provides general information and does not  provide legal advice. CASs may wish to consult with a lawyer for advice about specific facts and circumstances.
[3] CYFSA, s. 292(1)(a). See CYFSA, s. 292(4) for the definition of “law enforcement”.
[4] CYFSA, s. 292(1)(f), which is subject to CYFSA, s. 294 regarding records of a mental disorder. See CYFSA, s. 281 for the definition of a “proceeding.”
[5] SWSSWA, ss. 32(3) and 32(4).
[6] SWSSWA, ss. 55(2).
[7] CYFSA, s. 292(1)(h).
[8] SWSSWA, s. 41(1).
[9] SWSSSA, s. 41(2).
[10] SWSSWA, s. 42(1).