G.M. v. The Children's Aid Society of London & Middlesex, 2008 CFSRB 37

CHILD AND FAMILY SERVICES REVIEW BOARD

G.M. v. The Children's Aid Society of London & Middlesex

REASONS FOR DECISION ON MERITS

Date: March 28, 2008

Citation: 2008 CFSRB 37

Indexed as: G.M. v. The CAS of London & Middlesex (CFSA s.68)

1On March 20, 2008, the Child and Family Services Review Board (the “Board”) held a hearing on the application from G.M. (the “Applicant”) regarding a complaint against the Children’s Aid Society of London Middlesex (the “Society”) pursuant to section 68 of the Child and Family Services Act (the “Act”). The Applicant complained that the Society had not thoroughly investigated two incidents and had not complied with the terms of the settlement reached at the January […], 2008 pre-hearing, items 1.3 and 1.4.

2The Applicant, G.M., appeared in person. The Respondent Society was represented by legal counsel Michael Cormier and D.M., Child Protection Supervisor. Pre-hearings in this matter were conducted by the Board in the presence of the parties on January 10, 2008 and by teleconference on March 6, 2008.

PRE-HEARINGS

3The pre-hearing report for January 10, 2008, records a settlement agreement between the parties and states with respect to matters before this hearing, as follows:

SETTLEMENT AGREEMENT

1. More access to his daughter

4The Society explained that access was not something that they or the Child and Family Services Review Board can award or change.

Agreement

1.1 The Society indicated that they would be supportive of the father’s application for more access and would identify for the Court that there are no "protection issues" with the father.

1.2 The Society will talk with the case worker responsible for the file who will talk to the mother about allowing more access, about bad mouthing the father and about other issues related to the health and safety of the children.

1.3 Contact with the mother to take place within the next thirty (30) days.

1.4 The Society will inform the Applicant within the 30 day period when the meeting with the mother had occurred and what outcomes emerged from that meeting that affect his interest as the father.

3. Thoroughness of the Society investigation into two incidents

5The Applicant’s concern was of the Society’s investigation into two incidences, one incident involving the hospital and the second incident involving a red mark on his child’s hand. The Society explained their interpretation of how the investigations are conducted. It was agreed that the Society workers should not be commenting on the law.

Agreement

6More training needs to be done with case workers in this area.

7The Applicant was satisfied with the explanation.

8The matter was further pre-tried on March […], 2008. The Applicant wrote to the Board on February 2, 2008 to advise that the Society had not fulfilled the settlement made at the January 10th pre-hearing with respect to items 1.3 and 1.4. The Applicant then revived his complaint, which was settled at the January 10, 2008 pre-hearing concerning the thoroughness of the Society’s investigation into two incidents; one incident involving the hospital and a second incident involving a red mark on his child’s hand. These matters, 1.3 and 1.4, were referred to this hearing.

9At the hearing the Applicant was sworn, gave evidence and was cross-examined by the Society’s counsel. The Board received into evidence as Exhibit 1 a letter from the Society dated December […], 2007 addressed to the Applicant and his former partner, H., under the signature of J.H., Child Protection Worker, and D.M., Team Supervisor, Child and Family Services Department.

FINDINGS ON ISSUES AND ORDERS

10The Applicant complained to the Board that the Society had failed to comply with items 1.3 and 1.4 of the pre-hearing report dated January 10, 2008. This complaint was properly before the Board pursuant to section 68.1(1)(a) of the Child and Family Services Act as a service sought from the Society and reviewable by the Board pursuant to section 68.1(4)3 as an allegation that the Society failed to comply with the complaint review procedure. The Society at the pre-hearing on January 10, 2008 had agreed to fulfill items 1.3 and 1.4 and had subsequently confirmed so by letter to the Board dated June 24th from R.H., Director, Research and Change Management Department. The Board regards its own processes as part of the complaint review procedure under the Child and Family Services Act.

11Following the Applicant’s letter of complaint to the Child and Family Services Review Board on November 12, 2007, the Society wrote to the Applicant and his former partner, the mother of the Applicant’s two children that were subject of the CAS involvement. That letter dated December […], 2007 is Exhibit 1 in these proceedings. The letter contained a proposal that the Society would provide to both parents a service agreement to assist "in communicating around the girls’ needs and in making access arrangements". This approach by the Society is to be commended. The Applicant testified that a Society worker followed this letter up with him by telephone on January […], 2008, one week after the first pre-hearing was held before the Board, and one day before the pre-hearing report was released by the Board. The Society advised the Applicant that his former partner had expressed a willingness to become involved in the service agreement proposed by the Society in its December […], 2007 letter. The Applicant testified that at that time he declined participation in the proposed service agreement. Although he was willing to accept the Society’s proposal, he would not commit until the pre-hearing report from January 10, 2008 was received.

12The pre-hearing report dated and released January 18, 2008, stated under settlement agreement in item 1.3 that the Society’s contact with the mother of the Applicant’s children concerning more access, bad mouthing the father and about other issues related to the health and safety of the children was to take place within the next 30 days (from the date of the pre-hearing January 10, 2008). The fact is that the Society’s contact with the Applicant’s former partner, the mother of the children, had already taken place as evidenced by the December […], 2007 letter from the Society and the Society’s telephone call to the Applicant on January […] confirming that the children’s mother was willing to participate in the proposed service agreement. By letter dated February 21, 2008 to the Board, the Applicant requested a hearing as the Society had not informed him of the efforts made to contact his former partner, nor had he been informed of the outcome of any meeting with her.

13It is factually accurate that as of the date of that letter, the 30 day period set by the Board in its January 10, 2008 pre-hearing had expired.

14It is common ground that as of the date of this hearing the Society has informed the complainant that the children’s mother has changed her mind and is no longer interested in participating in the proposed service agreement and the dialogue it encouraged. The Applicant now recognizes that the Society cannot compel her participation. Regrettably the Applicant himself foreclosed that opportunity by declining the Society’s offer on January […], 2008.

15Strictly considered on a time running calculation from January 10, 2008, the Society is in breach of the settlement agreement and the Applicant’s complaint is valid. However, to ignore the Society’s efforts in its December […], 2007 letter and follow up by telephone to the Applicant on January […], 2008, is to give undue weight to form over substance. The Society’s earlier initiative in offering to facilitate communication between the Applicant and his former partner and the fact that the Applicant declined participation cannot be ignored in fairly balancing matters between the Society and the Applicant. The Board finds that the Society’s actions are in substantial compliance with the pre-hearing report. On review the Board makes no further order.

16The Applicant in his letter of complaint to the Board dated February 21, 2008, revived his complaint concerning the thoroughness of the Society’s investigation into two incidents. Rule 61 of the Board’s Rules of Procedure with respect to pre-hearing conferences provides that the presiding member shall attempt to have the Applicant and Society settle any or all issues. The pre-hearing report from the January 10, 2008 pre-hearing states that the parties reached an agreement concerning this complaint that more training needs to be done by the Society with case workers in the area of concern to the Applicant with respect to investigations and that Society workers should not be commenting on the law. The endorsement further states that the Applicant was satisfied with this explanation.

17On cross-examination the Applicant admitted that he again brought this complaint to the Board at this hearing only because the Society had failed to comply with sub-issues of settlement at paragraphs 1.3 and 1.4 of the January 10, 2008 pre-hearing. Those sub-issues are distinct from the complaint regarding thoroughness of investigation which is noted as settled at the pre-hearing.

18It is the Board’s position that this matter of complaint was settled by the parties at the pre-hearing. It cannot be put back on the table at this hearing by the Applicant. The issue has been resolved by settlement. It is presumed that to effect settlement at the pre-hearing the parties reached an accord on the complaint raised by the Applicant with respect to the thoroughness of the Society’s investigation into the two incidents. The Society’s admission that there is a need for more training for workers in this area implies a recognition that the Applicant’s complaint that investigations by the Society of his assault allegations against the other parent were not thoroughly investigated nor followed up with him in a timely fashion, had merit. This is the settlement achieved by the parties at the pre-hearing. No further order of the Board is therefore required.

19The Board makes no order as to costs.

Richard J. Linley

Presiding Member