G.M. v. Family and Children’s Services Niagara, 2008 CFSRB 45

CHILD AND FAMILY SERVICES REVIEW BOARD

G.M.

v.

Family and Children’s Services Niagara

REASONS FOR DECISION ON JURISDICTION AND MERITS

Date: May 16, 2008

Citation: 2008 CFSRB 45

Indexed as: G.M. v. F&CS Niagara (CFSA s.68)

1The Applicant filed an application pursuant to section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”) with the Child and Family Services Review Board (the “Board”) on January 7, 2008 against the Family and Children’s Services Niagara (the “Society”) wherein he alleges:

1. the Society has refused to proceed with his complaint;

2. the Society has failed to comply with the complaint review procedure or with any other procedural requirement under the Act relating to the review of complaints;

3. the Society has failed to comply with clause 2(2)(a) of the Act;

4. the Society has failed to provide him with reasons for a decision and this affects his interests.

2The Board determined that the application was eligible for review on January 14, 2008, and the Applicant and the Society were notified of this decision on that date.

3The Society, in its summary reply dated January […], 2008, raised a preliminary issue regarding the jurisdiction of the Board to hear the complaint. The Society requested that the Board dismiss the complaint on the basis that:

1. the Applicant’s complaint is ineligible for review by operation of subsection 68.1(8)(a) of the Act as the subject of the complaint is an issue that is before the courts;
2. the Applicant has not made, either before or after the application was filed, a written complaint to the Society so as to invoke the process set out in section 68(2) of the Act as required by O. REG 494/06 section 2;
3. the complaint regarding the provision of education services to A.V. is beyond the jurisdiction of the Board as it relates to a decision made about another individual by another organization, i.e. A.V.’s school.
4. in the event there is jurisdiction, that the Society has provided the Applicant an opportunity to be heard and has provided him with reasons for its decisions that affected his interests.

4A hearing was convened on April 29, 2008 in St. Catharines, Ontario, to hear the parties’ submissions on the issue of the Board’s jurisdiction to hear the complaint and to hear the merits of any issues that were within the Board’s jurisdiction to hear.

BACKGROUND

5From November 1996 until she became 18 years of age, A.V., D.O.B. July […], 1988 was a Crown ward under the care and custody of the Society. She gave birth to a male child on January […], 2008. A.V. had been living in a common-law relationship with the Applicant for several months prior to the birth, however she had indicated to the Society on more than one occasion that M.P. might have been the biological father of the child. The Society knew her well and as soon as they learned of the pregnancy in April, 2007 they opened a file and attempted to establish contact with A.V. They were not successful in doing so until October, 2007. Subsequently numerous meetings were held with both A.V. and the Applicant (the “parents”).

6The Society believed that the unborn child might require protection. As a teenager A.V. had been diagnosed with numerous disorders including Fetal Alcohol Syndrome, Oppositional Defiance Disorder and Attention Deficit Hyperactivity Disorder. Testing in 2003 had shown that she was functioning academically in the range of grade 2-4 and psychologically as a 6-8 year old. She was known to be aggressive with uncontrollable behaviour. She has had several assault charges and is unable to decipher fact from fiction.

7The initial meeting between the Society’s intake worker, H.P., and the parents was held on October […], 2007. H.P. clearly outlined the full range of the Society’s child protection concerns and informed the Applicant that A.V. was not able to care for a child nor could she be left alone unsupervised with a child.

8On October […], 2007 H.P. informed the Applicant that, if he had an appropriate plan to care for the child separate from A.V., it was possible for a Supervision Order to place the child with him. The Applicant was also told that A.V. would have supervised access to the child at the Society office only, and that A.V. could not reside with him and the child. The Applicant agreed that he would do what was necessary to protect the child. He indicated that he had assisted A.V. with her registration for the “Young Mom’s Program” at a school in [ ] and that together they would be enrolling for prenatal classes that commenced on November […], in Niagara Falls, Ontario.

9The Applicant was not financially able to handle separate living arrangements for both himself and A.V. In a telephone conversation on December […], 2007 H.P. expressed her serious reservations about the Applicant’s ability to abide by Society’s recommendations as he was not in agreement with the previous plan. The Applicant was advised that the Society would obtain a warrant to apprehend the child at birth and immediately commence a child protection application.

10The Applicant requested a meeting with H.P.’s supervisor, K.K., to discuss his concerns about the apprehension and A.V.’s ability to be a mother and care for the child. The meeting was held on December […], 2007. The Applicant disagreed with the Society’s assessment of A.V. but did acknowledge that there had been an opportunity for him to have care of the child under the proposed Supervision Order. Discussions occurred about the Applicant’s sister applying for a kinship placement. K.K. said it could be investigated but, with the holiday season approaching, it was unlikely to be completed prior to the birth of the child. K.K. re-stated the Society’s intention to apprehend the child at birth and provided the Applicant with information pamphlets about the Society’s complaint procedures.

11The child was apprehended without a warrant at birth on January […], 2008 and the protection application was filed on January […], 2008 with the Superior Court of Justice, Family Court, St. Catharines, Ontario.

RELEVANT LEGISLATION

12The legislation relevant to determining the Board’s jurisdiction is set out below.

68(2) Where a society receives a complaint under subsection (1), it shall deal with the complaint in accordance with the complaint review procedure established by regulation, subject to subsection 68.1(2).

68.1(1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may,

(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section; or

(b) where the person first makes a complaint to the society under section 68, submit the complaint to the Board before the society’s complaint review procedure is completed.

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 by subsection 68(2).

2. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to review of complaints.

3. Allegations that the society has failed to comply with clause 2(2)(a).

2(2) Service providers shall ensure,

(a) 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.

68.1(8) The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court.

54(1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2):

2. the parent of a child.

47(2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(a) the child’s name and age.

PRELIMINARY MATTERS

13The Applicant’s complaints against the Society were summarized into eight main issues, numbered #1 - #8, in the Pre-hearing Conference Report. At the outset of the oral hearing, the Board sought clarification from the parties as to whether all of the eight complaints were still in dispute. After hearing from the parties on this question, the Board determined that issues #4 and #7 were no longer being pursued by the Applicant based on the information set out below.

Issue #4

14This issue dealt with alleged inaccuracies regarding A.V.’s medical records in the Society’s file. Neither party spoke to this issue and therefore, the Board determined that this complaint was no longer being pursued by the Applicant. The Board notes that even if this complaint was being put forward by the Applicant, the Board does not have jurisdiction until such time as the Society’s internal complaints process is completed. A complaint regarding an alleged inaccuracy in a Society’s file must be made to the Society first before it can be reviewed by the Board under section 68(5) of the Act.

Issue #7

15The Applicant wanted to go through the internal complaints review procedure so that he could have an opportunity to discuss what is of concern for him. The Society had not received a letter of complaint from the Applicant by the time of the pre-hearing conference. No such letter had been received by the date of the oral hearing. The Applicant admitted that he had not submitted a formal letter of complaint as he had serious concerns about asking the Society to investigate itself. The Applicant indicated that he understood that in order to initiate the internal complaint procedure, he had to write a letter of complaint to the Executive Director. He was willing to drop this issue as a complaint.

ISSUE

16The Board must decide whether it has jurisdiction to hear the Applicant’s six remaining complaints.

DISCUSSION AND ANALYSIS

Issue #1, #2 and #3

17Each of these three issues is “name-related” vis-à-vis the child.

18Firstly, the Applicant wanted the Society to call his baby, the son of A.V., by the name given to him at birth being G.M.(2). The parents stated that they have seen other names used for the child, although no evidence was produced to verify this allegation. In its Protection Application, also referred to herein as Exhibit R-1, filed with the Court on January […], 2008 the Society identified the child as G.M.(2), the name requested by the parents. The Society had reason to question the paternity of the child. The matter of confirming the child’s biological father was raised by the Society in paragraph 300 of its Protection Application. With consent of the Applicant and at the Society’s expense DNA testing was completed in early April, 2008. The results of the testing are not known.

19Secondly, the Applicant wants the live birth registration to reflect the correct information of both parents, the Applicant and A.V., and wants the right to fill out this information as soon as possible. A staff person at the hospital where the child was born completed the live birth registration. The Office of the Registrar General would not provide the Applicant with the name on that registration.

20Thirdly, the Applicant wants to see the Health Card information of the baby to ensure that it is the correct information in respect to the surname, namely M. and not V. The Applicant has seen the child’s Health Card and it does have the correct name of G.M.(2). However, without providing proof, he indicated that the local health card office has a different name for the male child born to A.V. on the correct date in January, 2008. The Applicant believes that there may be two different Health Cards for the child, one with the correct name and one that is incorrect.

21Section 47(2) of the Act requires that the Court determine the child’s name. The Court will be able to do so more effectively once the matter of paternity is settled. It therefore follows that the name used for the child by the Society, the child’s live birth registration and the name on his Health Card are dependent upon that determination by the Court. It is therefore clear that the issue of the child’s name is before the Court.

Issue #5

22The Applicant was concerned about how the child protection worker and supervisor speak to himself and A.V. believing it to be very inappropriate. The parents allege that H.P. was unprofessional and spoke to them in an abrupt and aggressive manner. They also allege that H.P. was acting in a prejudicial and malicious manner. The parents allege further that they were yelled at and spoken to in a very negative manner by K.K. In response to these allegations the Society indicated that it took steps to have the behaviours improved and thus believed that the matter is resolved. The Applicant agreed that there had been some improvement; however he felt the measures were only partially successful. The question to be answered is whether the parents had an opportunity to be heard when they had concerns about the services they were receiving. The Board has jurisdiction to hear this complaint pursuant to section 68.1(4)4 of the Act.

Issue #6

23The Applicant wanted to have family counselling with support from the Society to enrol in a program. He indicated that a counselling process had been started and that he had discontinued it after one session. The Applicant felt that the service was not satisfactory because he wanted an independent counselling service that was not directly involved with the Society. The Society responded by indicating that, following the pre-hearing conference, it had enabled the parents to “jump the queue” in order to commence a counselling program. The family counselling centre where the parents attended the one session works independently from the Society though it is under the same corporate umbrella. The Society felt that it had done what had been requested and could not be held accountable for the Applicant’s decision to withdraw from the program.

24The Board does not have jurisdiction to hear the Applicant’s complaint. The complaint is not about the Society not listening to the Applicant’s request for counselling because counselling was provided. The complaint is about the kind of counselling that was provided and the Board does not have jurisdiction under section 68.1(4) of the Act to hear this complaint.

Issue #8

25The Applicant wants an independent psychiatric assessment done of A.V. and paid for by the Society. He believes that the current documentation is dated and that A.V. is a much more capable and reliable person; that she could handle the parenting of her child. However, the Society argues that the Court determines risk to the child. Information contained in psychological assessments of the parents would be part of that determination. If the Court determined it required further assessments those assessments could be ordered under section 54 of the Act. It is the Society’s position that this matter is before the Court and thus it (the Society) is under no obligation to request and pay for an independent psychological assessment for A.V. The matter of an independent psychological assessment is before the Court.

CONCLUSION

26The Board finds that four of the issues, identified above as #1, #2, #3, and #8 are before the Court and as a result, subsection 68.1(8)(a) applies and the Board has no jurisdiction to hear this portion of the complaint. The Board has no jurisdiction to hear #6 because its jurisdiction is limited to the complaints enumerated in section 68.1(4) of the Act.

27The Board finds that the portion of issue #5 that specifically relates to the Applicant’s opportunity to be heard when he had concerns about the services he was receiving is not before the Court and it has jurisdiction to hear that complaint.

DECISION

28The Board has jurisdiction under subsection 68.1(4) of the Act to hear the Applicant’s complaints that relate only to the manner in which he and A.V. were treated by the Society’s workers between October, 2007 and the pre-hearing conference of February 13, 2008.

MERITS

29The Board received evidence from A.V. and the Applicant about their alleged mistreatment from the Society workers, namely H.P. and K.K. Tone of voice, yelling, and statements made which created a feeling for the parents of being threatened and disrespected. The parents met with K.K. on December […], 2007 to discuss H.P.’s behaviour and attitude. The Applicant alleges that he was yelled at by K.K. and that she used a negative tone of voice when informing the parents that there would never be a point in time where A.V. is a parent to this child. The parents felt rejected by K.K. in their request for a kinship placement when they were told that the Society did not have the manpower for that right now. A.V. could not recall an apology from K.K. at that meeting, however the Applicant did confirm the apology. The Applicant also felt that having two workers present for meetings might defuse any confrontations.

30The Society presented evidence to indicate that it has responded to all requests made by the parents. From the time of the initial meeting between the parents and H.P. in October, 2007 the Society clearly explained why it would be apprehending the child. The Society gave the Applicant many opportunities to present a plan of care so that he could receive a Supervision Order. Following the parents’ complaints about their treatment by the Society workers, Ms. L. issued a directive to the intake staff to improve their treatment of clients; to treat them with dignity and respect. Following the pre-hearing conference K.K. forbade H.P. from meeting with the parents unless she (K.K.) was present.

31The Society also presented evidence to show that it made efforts to seek kinship placements for the child. The Applicant’s mother was visited for this purpose. At the December […], 2007 meeting with K.K. the Applicant suggested that his sister was a possibility for a kinship placement. She was visited, not immediately because of staff shortages over the Christmas vacation, and asked to submit a plan of care to the Society. She did not do so.

32In late October, 2007 A.V. enrolled in a school program designed to assist young mothers. The Applicant alleges that the Society, through H.P., interfered with school officials in having A.V. removed from the program. The Society’s Summary Reply of January […], 2008, Exhibit R-2, indicates that the school initiated contact with H.P. to discuss its difficulties in providing education services to A.V. K.K.’s case notes of December […], 2008 (Exhibit R-3) also indicate that the school had called the Society to discuss A.V.’s inability to cope with the instruction.

33The parents had requested a new intake worker to replace H.P. The request was denied by the Society as H.P.’s involvement would terminate as soon as the child protection matter was resolved by the Court. If and when the child was in the Society’s permanent care and custody a new child protection worker would be assigned to the file. The Society implied that it would not be advantageous to assign a new intake worker for what it surmised could be a very short period of time.

CONCLUSION

34The Board concludes that the Society heard and subsequently responded to the Applicant’s requests and maintained an open door policy in dealing with the parents. K.K. indicated to the Applicant that she did not raise her voice but if she did she was sorry. She offered an apology for the alleged yelling at the December […], 2007 meeting. K.K. also indicated that two workers are present for meetings with the parents. Ms. L. took measures to improve the quality of the interactions with its clients, i.e. treating people with more dignity and respect. The Society made attempts to arrange kinship placements. The Society was not involved in A.V.’s enrolment in a school program for young mothers nor did it interfere in her removal from that program.

35The Board recognizes the tremendous stress the parents experienced as a result of having their child apprehended at birth and their valiant struggles to cope with those extraordinary stresses. From the time of initial contact between the Society and the parents the Board believes that, in the vast majority of instances, the parents were treated fairly by the Society. The parents’ concerns were heard and reasons were provided for decisions made by the Society.

DECISION

36Having regard to all of the above, the Board finds that the Society did not breach section 68.1(4) of the Act. Accordingly, the complaint made by the Applicant that was within the Board’s jurisdiction is dismissed as permitted pursuant to subparagraph (e) of section 68.1(7).

Mary Wong

Presiding Member

Fizul Sima

Panel Member

John Gates

Panel Member