CHILD AND FAMILY SERVICES REVIEW BOARD

J.P.

v.

Prescott-Russell Services to Children and Adults

REASONS FOR DECISION ON MERITS

Date: April 25 , 2008

Citation: 2008 CFSRB 31

Indexed as: J.P. v. Prescott-Russell Services to Children and Adults (CFSA s.68)

Related Decisions: Reasons for Decision on Jurisdiction - J.P. v. Prescott-Russell Services to Children and Adults (CFSA s.68), 2008 CFSRB 3, 2008 CFSRB 03

INTRODUCTION

1On October 4, 2007 the Child and Family Services Review Board (the “Board”) received an application from Mr. J.P. (the “Applicant”) regarding a complaint against the Prescott-Russell Services to Children and Adults (the “Services”) pursuant to section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C11 (the “Act”). Mr. J.P. complained about actions of the Services that he considered amounted to harassment, relating to his access to his children.

2The Board held a hearing on December 14, 2007 in Ottawa to deal with a preliminary motion by the Services regarding the Board’s jurisdiction to hear the complaint. In a written decision dated January 31, 2008, the Board found it had jurisdiction to hear part of the Applicant’s complaint, namely whether his rights under section 2(2)(a) of the Act were respected by the Services when they facilitated services to the Applicant respecting visits with his children.

3A hearing was held on the merits of the complaint on March 7, 2008 in Ottawa. Mr. J.P. represented himself. The Services were represented by Sylvie Godin, in-house counsel. The Services called two witnesses: M.R., family services worker (“intervenante communautaire”), and S.H., child protection worker. The hearing took place in French and English.

BACKGROUND

[4] The background to this complaint is described in the decision of this Board dated January 31, 2008.

5Briefly, following the parents’ divorce, the Court awarded custody of the children to their mother, and visitation rights “according to the wishes of the children” to the Applicant. Fr. P. is 16 years old, F.P. is 14, M.P. is 11, and C.P. is 9. Fr. and F.P. are residing in foster homes, while M.P. and C.P. are residing with their mother. The eldest two refuse to see their father, and the Applicant has difficulty contacting the younger two because their mother blocks his telephone calls. He complains that:

(i) the Services took an active hand in impeding his access to the children residing with their mother, by encouraging her to obtain an answering machine to screen his calls; and

(ii) the Services, in their involvement in this family’s file, did not do their best to discern the independent wishes of F.P and Fr. when they were in foster homes, and have them visit their father.

EVIDENCE AND ARGUMENT

6The Services objected to the Board receiving evidence about complaints regarding the Applicant’s two youngest children, M.P. and C.P., because it submitted they were not part of the original application filed with the Board on October 4, 2007. The original application, however, includes a reference to the Services’ involvement in the mother’s use of an answering machine, and the impact on his ability to access the children when they were with their mother.

(i) The Answering Machine

7Fr. left his mother’s home for a foster home from approximately February […], 2006 to November […], 2006. He had resided temporarily in a foster home previously.

8F.P. did the same from approximately March […], 2006 until June […], 2006.

9However, both adolescents requested to move back into a foster home on February […], 2007. They have been in foster homes ever since.

10The Applicant testified that, until the fall of 2006, visits were taking place and he was able to contact his children by telephone “normally”. Starting approximately in the fall 2006, however, the children’s mother began to prevent the visits from taking place. She obtained an answering machine, and refused to allow the children to answer calls from their father. It appears that in the fall of 2006, M.P., C.P. and F.P. were residing with her.

11The Applicant entered into evidence an excerpt from an affidavit by M.F., the children’s mother, dated […] May 2007 (exhibit -1, tab 8). He argues that at page 3, para. 16, Ms. M.F. affirms that she obtained an answering machine on the advice of the Services. The Applicant believes the Services are harassing him, and that by advising his ex-wife to screen his calls, they are impeding his access to his children, rather than facilitating it.

12Ms. H-V, child protection worker with the Services, testified on this point. She stated that she has been involved in the P. family file since February […], 2006, when Fr. asked to be placed in a foster home.

13Ms. H-V testified that any decisions about using an answering machine, or screening the Applicant’s phone calls, are made by the mother alone. She confirmed that the Services are supporting her in making decisions that lead to effective management of her household. Ms. H-V’s affidavit of November […], 2007 speaks to this issue also. At paragraphs 74-76, she notes that a meeting was held on January […], 2007 between the Applicant, Ms. H-V and her supervisor, Ms. L.. At the meeting, the Services indicated that the children’s mother had every right to manage his phone calls to her home, for the well-being of the family. The same issue was discussed over the telephone on February […], 2007, in a conversation between the Applicant and Ms. H-V, and it appears that the Services repeated the same message to Mr. J.P..

14M.P. and C.P. have at all relevant times been in the custody of their mother, and the Services have no control over her use of an answering machine or whether she abides by the Court order regarding access. Mr. J.P. himself testified that there was a turning point in his relationship with his ex-wife, after which his access was severely reduced. It appears that this issue turns on whether the mother is respecting the Court-ordered visitation rights of the father. Enforcement of Court orders, or their variation, is not a request that this Board can entertain. The evidence regarding the Services’ involvement on this point indicates that Mr. J.P. was able to raise his concerns about the answering machine, and he received a response. Mr. J.P. clearly disagrees with the Services’ point of view, and continues to feel they are taking the mother’s “side”. Nonetheless, this Board is only able to review whether the Services heard and addressed his complaint, and finds that it did.

15As a result, the Board dismisses this aspect of the complaint.

(ii) Encouraging F.P. and Fr. to Visit Their Father

16The thrust of the Applicant’s argument is that his children have been unduly influenced by their mother to refuse to visit him, and the Services should have realized this was happening and taken corrective action.

17The Applicant testified that, in his view, the Services should be asking themselves why F.P. and Fr. are refusing to see him. Instead, when they ask the adolescent children whether they wish to visit the Applicant, the Services accept a simple “no”. The Applicant believes that the only explanation for their refusal to see him is influence by the mother, since all previous visits with his children were positive. As a result, the Services are not fulfilling their duty in looking out for the children’s best interests, since contact with both parents is in their best interests. Further, he argued that the children’s refusal to see him should ring “alarm bells” with the Services, that perhaps they are being psychologically abused by their mother. He points out that two different judges have reprimanded the mother in the past, for her actions.

18With respect to F.P., the Applicant submitted that he saw him regularly in 2005 on weekends. Most recently, F.P. refused even to say hello when he saw his father in the street. The Applicant believes the Services are simply encouraging the children in this exaggerated reaction. That said, the Applicant accepts that he cannot force the two eldest, F.P. and Fr., to visit him if they are against it.

19The Applicant asks that the Board make an order that the Services must arrange for an independent specialist, perhaps a psychologist, to interview the children away from both parents, and get to the bottom of this problem. This is necessary, he argues, because presently the children have no real voice of their own.

20For their part, the Services noted that they must fulfill s.2(2)(a) rights for all those receiving services: the Applicant, as well as for the children and their mother. Ms. Godin, counsel for the Services, argued that all decisions by the Services are made in light of their requirement to balance the interests of all parties. The Services asks that the Board dismiss the complaint.

21Ms. M.R. is the Services worker for F.P. and Fr.. She testified as to the Services’ efforts to facilitate visits with their father. Her involvement with F.P. and Fr. began in June 2007, when the file was transferred to her from Ms. H-V. Ms. M.R. testified that she visits them at least once per month.

22Ms. M.R. was not aware of any contact F.P. and Fr. had with their father prior to her taking over the file. She testified that the Plan of Care for both boys includes the objective to establish positive contact with their father, but that neither Fr. nor F.P. wants contact at this time. As the Plans of Care are confidential, they could not be filed into evidence without the consent of the children.

23Ms. M.R. testified that in order to discern the wishes of the children, she encourages them to talk but does not force the issue; she broaches the subject regularly (every 2-3 months) but does not want it to become harassing to the children. She also passes on messages from the Applicant, that he wants to see the boys. On July […], 2007 for example, Ms. M.R. informed Fr. his father wanted to see him, when she was so informed by his former foster parents.

24Other occasions on which Ms. M.R. raised with the adolescent boys the fact that their father wanted to meet with them were: […] December 2007 (both Fr. and F.P.), […] January 2008 (F.P.), and […] February 2008 ( Fr. and F.P.). She also testified that on February […], 2008 when she raised the subject of parental visits, F.P. responded that he didn’t want her to raise the subject of visits with his father again.

25Ms. M.R. testified that the Applicant gave her a CD to give to F.P. on […] January 2008, which she did on January […].

26On cross-examination by the Applicant, Ms. M.R. testified that information involves only what the children told her, and that she has not done research into whether they have been influenced to make these comments. She testified that what she sees, especially with Fr., is rage and frustration against the Applicant.

27In response to questions by the Applicant, Ms. M.R. agreed that, despite the children’s claims that they were afraid of him, the Services’ view is that the children should visit the Applicant. Ms. M.R. noted that the Services have involved integration workers (“agents d’intégration”) in the file. They work on issues with the children such as self-esteem and anger management. They work with the children to solve underlying issues, in the hope that there will be meaningful contact with the Applicant in the long term. She noted that Fr. and F.P. don’t want access with their mother, either.

28Ms. H-V also testified regarding facilitation of visits. She noted that she has never facilitated a visit between the Applicant and his children. Any access the Applicant had with his children was arranged by him, without the Services. She testified that she told the Applicant she could facilitate visits with his children if he let her know about the weekends he has legal access to them. However, that never happened. She got the impression the Applicant did not want her to be involved in organizing access.

29Ms. H-V reviewed her notes and listed all of the contacts she had with the Applicant, and all communication she had with Fr. and F.P. to encourage them to contact and visit their father. She testified that on each occasion when the Applicant told her he wanted contact with his adolescent boys, she in turn mentioned this to them. For example, she testified that she broached the subject of visits from the Applicant with Fr. and F.P. on the following occasions: February […], 2007; […] March 2007; […] August 2007 following a request from the Applicant. She testified that she encouraged F.P., and told him his father wanted news about him. When Fr. was contacted a short time later, he also refused. Ms. H-V also spoke with Ms. M.R. to be sure the message got communicated to them that their father wants contact.

30Ms. H-V testified that during her involvement with the file, Fr. and F.P. never wanted to contact their father and never asked for visits with the Applicant. Ms. H-V testified that she nevertheless encouraged them to stay “open” to the idea. She testified that she told the Applicant on various occasions that the boys did not want visits, but that the Services would encourage visits when they were ready.

31For example, when the Applicant called the Services on […] September 2006 asking for information about where Fr. was living, Ms. H-V testified that she contacted Fr. and informed him that his father wanted to contact him. Fr. replied that he would call his father. Ms. H-V found that an appropriate answer, given his age as an older child, and the Court order that visits should be according to the children’s wishes, and left it at that.

32Ms. H-V testified that on […] September 2007, she gave Fr. and F.P. and the foster family the Applicant’s phone number, stating that he wanted to have news about his children. Although the boys did not wish to make contact, the foster parents held on to the number for future reference.

33Ms. H-V testified that she raises the issue of visiting the Applicant approximately every two months, and tries to ensure the boys remain “open” to having a relationship with him, because they will not always feel as they do now. Both witnesses from the Services testified that they do not wish to harass the adolescents, by harping on the visitation issue when the boys have clearly expressed their feelings. The Services filed a recent letter from F.P., indicating he has no current desire to see his father.

34Ms. H-V testified that the Services want the children to know that they respect their wishes, while also telling them that they will see things differently when they get older.

35Ms. H-V also testified that the Services are encouraging both adolescents to receive services from a specialized “educator”, who will work with them on issues related to their relationship with their father. It was declined by both boys at first, but both have recently accepted this personalized help.

36Ms. H-V testified that the Plans of Care were provided to the Applicant, and that they include visits with their father as an objective.

37In reply to a question from counsel, Ms. H-V testified that she didn’t see how this issue could have been managed any other way. She testified that she calls him back each time he complains, and that she could have done nothing more, other than to force the children to see their father, which the Services cannot do.

38The Services made no argument as to whether or not they have a duty to “dig deeper” into the boys’ refusal to see their father, as argued by the Applicant. The Services do not have a concern about the safety of the children with the Applicant, and they believe it is in the adolescents’ best interests to see their father.

39The Board is restricted to reviewing the matters given to it by legislation. In this case, the relevant section is 2(2)(a). The Board can consider whether or not a Children’s Aid Society gave a client the opportunity to have his or her concerns heard, and whether it gave reasons for decisions made.

40It appears from the evidence that the Services met with the Applicant and accepted telephone calls from him on numerous occasions.

41It appears from the evidence that both witnesses were diligent in raising with Fr. and F.P. the fact that the Applicant wanted to meet with them, whenever he asked them to do so. Ms. M.R. passed on a CD provided by the Applicant. Although electronic mail contact is a very limited and doubtless unsatisfying way to communicate with one’s child, nonetheless Ms. H-V was successful in having Fr. unblock his father’s access to his e-mail account in order to receive birthday greetings on October […], 2007, when he steadfastly refused to allow communication in any other form.

42There is no evidence that the Services failed to respond, when the Applicant raised complaints or concerns with the Services. Rather, the evidence reveals that on each occasion a concern or complaint was raised by Mr. J.P., the Services replied by phone or arranged a meeting. At the meeting of January […], 2007, the Applicant expressed his frustration that the children’s mother was not giving him access. The Board finds the Services responded to the concerns of the Applicant, in accordance with s.2(2)(a).

43The Applicant urges the Board to find there is an obligation on the Services to dig deeper, and find out whether the children are refusing visits because of influence by the mother. It is noteworthy that Fr. and F.P. were in foster care on many of the occasions when they refused to see their father, and refused contact with their mother also.

44In any event, it does not appear that this Board is permitted under law to determine whether or not the Services have such a duty, and if so whether they have substantively carried it out. Section 68.1(4) enumerates the matters that may be reviewed by this Board, as follows:

S. 68.1(4) The following matters may be reviewed by the Board under this section:

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68(1) as required under subsection 68(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 clause 2(2)(a).

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

Clause 2(2)(a), referred to above, provides:

2(2)(a) Service providers shall ensure that children and their parents have an opportunity where appropriate 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.

45The Services have offered specialized educators to the children, in an effort to have them deal with personal issues, move past this refusal and begin to visit their father, which all Parties agree is important to a child’s long-term best interests. The Services include the objective of healthy contact with the children’s father, in their Plans of Care. The Services have communicated messages from the Applicant regarding access, when they have met with the children.

46It is no doubt frustrating for Mr. J.P. that he is at an impasse in his efforts to visit Fr. and F.P.. The Board finds the Services have heard Mr. J.P.’s concerns and have responded to them as much as they have found possible, within their limited involvement in the access issue.

CONCLUSION

47For all of the foregoing reasons, the Board dismisses this complaint.

Heather Gibbs

Presiding Member