(Revised August 1987)
INTERIM GUIDELINES FOR EXPUNCTION HEARINGS
Reprinted November, 1987
© Queen's Printer for Ontario, 1887
INTERIM GUIDELINES FOR EXPUNCTION HEARINGS
THE CHILD ABUSE REGISTER
(THE CHILD AND FAMILY SERVICES ACT. 1984. SUBSECTIONS (3) TO (12) Of SECTION 72)
A WORD ABOUT THIS EDITION
In June 1982, a booklet was first published to familiarize children's aid societies and individuals with some of the more practical aspects of the Provincial Child Abuse Register (the •Register•) and Expunction Hearings.
With the growing emphasis over the past few years on the rights of individuals, many contentious issues have arisen with respect to the nature and functioning of the Resister. A review of those complex issues is currently underway.
With the possibility of significant revisions as a result of that study, the following guidelines have not been significantly altered in this edition. The booklet has, however, been updated on an interim basis, to reflect appropriate references to the Child and family Services Act. 1984.
The practice and procedures outlined in this paper have been developed by the Ministry for the following reasons:
These guidelines are for the use and information of the Director of the Provincial Child Abuse Register (the "Director"), persons designated by the Director to conduct an expunction hearing on the Director's behalf, the registered person who is requesting that his/her name be removed from the Register, the ·Children's Aid Society and any other person whom the Director specifies as a party to the Hearing (see s.72(7) of the CFSA}.
Placement of a Name on the Register
There are two requirements which must be fulfilled in order to place a name on the Register. They are:
These requirements are the two specific matters the Director for the Register must ensure have been properly addressed by the Children's Aid Society which has submitted the report.
When an individual's name has been placed on the Register, he/she is sent written notice that the name has been placed, the reason for the placement and the fact that they have the right to request an expunction hearing.
Requests for Expunction
Requests for expunction should be received in writing by the Director except in unusual circumstances. They may originate with the alleged abuser, his/her lawyer or other agent, or a Children's Aid Society.
Care must be taken in the case of a telephone call to ensure that the person calling is in fact the one to whom a letter has been written or a bona fide agent of that person. This can normally be done by a return phone call. Without revealing any details of the registration itself information may and should be given about the purpose and general procedures of the Register and expunction hearings.
Frequently reassurance about the confidential nature of the Register or explanation about •reportable• abuse and what may cause an expunction, and/or review of the procedure for a hearing may result in the withdrawal of requests for expunction.
However. when the alleged abuser or his/her agent requests expunction, the Director of the Register may:
The issues to be determined by the Director are:
Once a request has been made, the following procedures shall be followed:
The Director contacts the children's aid society to determine if the two requirements for placing a name on the Register have been met, and/or if anything has occurred since the registration which would warrant the removal of the name.
If the requirements have not been met, or if there is other reason to question the registration, the children's aid society recommends to the Director in writing that the name be expunged. If the Director agrees with the recommendation, the alleged abuser's name is expunged. The alleged abuser and the children's aid society are informed of the expunction in writing.
If the requirements have been met and nothing hat occurred since the registration which would warrant the removal of the name, the children's aid society recommends that the name remain on the Register. If the Director agrees with the recommendation, the decision as to whether or not the name should be removed will be made after an expunction hearing has been held by a hearing officer appointed by the Director.
The outcome of a related protection or criminal court proceeding may not necessarily affect registration. However, if there is a finding of fact - as opposed to charges withdrawn, stayed or dismissed that indicates:
then expunction will be considered in light of the court's findings, bearing in mind that entries in the Register should not be limited to cases in which abuse has been established by standards of proof applicable to criminal or civil action.
In some circumstances, a name may be expunged without a request from an alleged abuser or a children's aid society, at the initiative of the Director, for example, if an abuser dies. Normally, however, such action will be taken at the request of a children's aid society.
The Director retains· the right in all cases to decide whether a name should be expunged, or whether an expunction hearing should be held to decide this issue.
Preliminary Steps to en Expunction Hearing
The Director informs the alleged abuser or his agent in writing that to have his/her name removed from the Register, the alleged abuser bas the right to a hearing under s.72(4) of the CFSA. If the alleged abuser notifies the Director that he/she wishes to proceed, steps are then taken to set up a hearing.
The first step is the appointment by the Director of a hearing officer who then assumes responsibility for the conduct of the hearing and the decision regarding expunction. The hearing officer will be a person with expert knowledge of the CFSA, and Statutory Powers Procedures Act and will be thoroughly versed in the handling of such hearings.
It is a basic principle of law that a party bas a right to know the case he/she has to meet - before he/she has to meet it. For the purposes of an expunction hearing, that means that the registered person (or his agent) is entitled to reasonable information about the allegations made against him/her (see s.8 of the Statutory Powers Procedures Act). Normally, the alleged abuser will have been told by the children's aid society when the investigation and verification of the abuse is complete that be/she will be reported to the Register and the reasons for the report.
If the alleged abuser requests information about the allegations against him/her when a hearing has been arranged, the society should provide him/her or his/her agent with ·any written or documentary evidence which it will present.
Similar information may be requested by the society from the alleged abuser or his/ her agent.
If court proceedings are pending or in process, either party may request an adjournment of the hearing to a later date.
Once the arrangements for an expunction hearing• have been completed, parties must be given formal notice at ·least 10 days in advance of the hearing date.
The hearing officer should know virtually nothing about the case before the hearing in order to ensure ·that his/her objectivity is maintained. The issues to be determined by the hearing officer are:
The type of questions which the hearing officer should bear in mind are:
What facts at the hearing indicate actual abuse of the child named in the report to the Register?
What facts point to the responsibility of the registered person for the alleged abuse?
How credible is the evidence?
The hearing officer has the right to conduct the hearing as he/she sees fit subject to the provisions of the Statutory Powers Procedures Act and the CFSA.
It is not necessary to prove the information on a balance of probabilities or beyond a reasonable doubt. All that is required is some credible evidence supporting the registration. The hearing officer will permit reply evidence if necessary.
Post Hearing Procedures
The hearing officer will submit a written decision with reasons to the Director of the Register and all parties to the hearing. The decision of the hearing officer should be included in the children's aid society's records.
The Director will either direct that the name remain on the Register, or be expunged, and will inform the parties in writing of his decision.
An appeal may be made to the Divisional Court from hearing officer (s.72(9) CFSA). ·
The Child and Family Services Act gives alleged abusers named on the Child Abuse Register the right to request that their names be expunged.
The Director of the Provincial Child Abuse Register may grant such a request, or decide to give the alleged abuser an opportunity to have an expunction hearing before refusing the request.
If a hearing is to be held, the Director appoints a hearing officer and delegates the responsibility of deciding whether or not the name(s) should be expunged to that person after a full hearing of the case.