K.R. v. Renfrew Family & Children’s Services, 2008 CFSRB 87

CHILD AND FAMILY SERVICES REVIEW BOARD

K.R. v. Renfrew Family & Children’s Services

REASONS FOR DECISION ON MERITS

Date: September 4, 2008

Citation: 2008 CFSRB 87

Indexed as: K.R. v. Renfrew F&CS (CFSA s.68)

INTRODUCTION

1This is an application under section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “CFSA”) brought by K.R. (the “Applicant”) against the Family & Children’s Services of Renfrew County (the “Society”). The Applicant complains that the Society failed to provide him with reasons for its decision to attend at his home on March […], 2004 and to assist his former spouse in attempting to remove his children from his care.

Section 68.1(4)5 of the CFSA gives the Board the authority to review:

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

2For the reasons that follow, the Board finds that the Society did not provide the Applicant with reasons for decisions that affected his interests relating to the events of March […], 2004.

BACKGROUND

3The Applicant has three children: S.L.N., born December […], 1995, E.W.N., born June […], 1998 and P.R.N., born April […], 2001. The mother of the children is A.L.N. (“the mother”).

4The matters before the Board relate to the Society’s involvement in a custody and access dispute between the Applicant and the mother. The Society had a history of involvement with the family commencing in December of 2000. The Applicant and the mother resided together in P. with the three children until approximately January of 2004. In December of 2003, the Society obtained an interim supervision order. Upon learning that the mother had left the Applicant and moved to P. with the children in January of 2004, the Society withdrew its application for a supervision order and had the interim order terminated on or around February […], 2004. According to Society correspondence to the Applicant dated October […], 2007, the Society closed its file in March, 2004 and made a referral to Durham Children’s Aid Society (“Durham CAS”).

5On March […], 2004, the Applicant obtained an ex parte, interim order granting him custody of the children up to and including March […], 2004 at 9:30 a.m. when the matter was made returnable to the Court in R..

6On March […], 2004, at a time which is subject to dispute, the Society attended at the Applicant’s home. The Applicant was not present initially, but arrived home to see the Society, with the mother, loading the children into a car. The Applicant saw this as an attempt to take his children and to assist the mother who was, according to the Applicant, not permitted to be at his residence.

7It is the Applicant’s position that he was not offered an explanation as to why the Society was at his home with the mother during the morning of March […], 2004, prior to the Court dealing with the custody of his children on that day. The Applicant’s concern was exacerbated by his belief that the mother was prohibited from attending on the Applicant’s property. It is the Society’s position that they had a legitimate basis for their actions as a result of the concerns and comments of the Family Court judge the morning of March […], 2004. The Board must decide, based on the evidence, whether or not the Society provided the Applicant with reasons as to why it attended with the mother, regardless of whether or not it had a legitimate basis for its actions.

ANALYSIS

8At the outset of the hearing, the Applicant clarified that the name of the person from the Society that he had identified in his application as attending at his home was in error. The Applicant advised that it was not L.F. but rather, a worker, C.W., who attended at his home. The Applicant also clarified that his application did not relate to events later in the day when the Society returned to his home to assist the mother who, by then, had obtained a Court order for interim custody.

9The Applicant testified about the events of March […], 2004. He testified that he had obtained an interim custody order on March […], 2004 and was to return to Court in R. on March […], 2004. That morning, he was trying to hitch hike to Court in R. and was in Tim Horton’s. He had arranged for S.M. to baby sit. His evidence was that he returned home at approximately 8:30 a.m. to find the mother and another woman on his property. According to the Applicant, the mother was not allowed within 500 feet of his place. As he approached the home, he saw the woman and the mother loading the children into the car. He now understands that the woman was C.W. of the Society (“the worker”). He advised the worker that he had custody of the children until that day and that she was aiding and abetting in a crime. She left the children in his care and she and the mother “took off to R. Court.” The Applicant testified that he then proceeded to try to get to Court by hitchhiking. He was not able to get there.

10The Applicant stated he was given no explanation as to why the Society was there or why they tried to load the children into the car. The Applicant testified that he asked the worker why she was there but that he got no reply. The Applicant was not advised that Court had been stood down to 1:45 p.m. When the mother came back with a Court order later in the day, accompanied by the worker and the police, the Applicant saw the Court order and had no complaint regarding the Society.

11The Applicant called Mr. S.M. as a witness. Mr. S.M. testified that he was babysitting for the Applicant on March […], 2004. He testified that he started babysitting at approximately 10 a.m. Approximately half an hour to forty five minutes later, a woman pulled up in a car and tried to take the children away. The woman did not identify herself to him as a Society worker. She was with the mother, whom he knew. The mother said they were “here to get the kids.” The witness didn’t know what to do, so he had to let them go. Shortly after that, the Applicant came back. The witness let the Applicant deal with the situation. The mother left with the woman. The witness testified that he was present at the Applicant’s home with the children, from the time he commenced babysitting through to when the mother and the woman left.

12The Society did not call Ms. C.W. as a witness. They advised that she no longer works for the Society. The Society agreed that it was C.W. who attended at the Applicant’s residence on March […], 2004.

13The Society called Ms. L.F. as a witness. Ms. L.F. testified that she was legal counsel for the Society and that she had been involved in the earlier child protection proceedings relating to the children. The application was withdrawn because the mother moved with the children and the Society had no further protection concerns. She testified that following the March […], 2004 ex parte interim order, she was notified about the custody proceeding and the upcoming return date of March […], 2004. A copy of the March […], 2004 endorsement was filed with the Board. The endorsement of Justice Wilson states, in part: “Duty Counsel to advise CAS of this matter forthwith.” The witness testified that Justice Wilson will generally make a referral to the Society if she sits on a domestic matter and thinks there are child protection or safety concerns. The practice of the Society is to assign a lawyer, in this case Ms. L.F., to assist the worker. Ms. L.F. contacted the worker and discussed the need to be at Court on the […] of March, 2004. She also asked the worker to locate the mother to advise her of the order and suggest that she attend Court on March […].

14Ms. L.F. relied on and referred to the case notes of Ms. C.W.. The witness testified that hand written notes are made contemporaneously with the events if possible. They are then entered into the computer. The date created indicates when they are entered into the system and they are then locked. The case notes filed with the Board were created on March 23, 2004. It was Ms. L.F.’s understanding that they could not be altered.

15Ms. L.F. testified that she spoke to the worker at or around 8:30 a.m. on the morning of March […], 2004. She testified that the worker had thought Court was in P.; however, it was in R.. She directed the worker to attend at P. Court and see if she could locate the mother and bring her to Court in R.. Ms. L.F. attended Court in R.. She testified that the Judge expressed a great deal of concern that the parents weren’t present and expressed concerns for the safety of the children. According to Ms. L.F., the Judge asked where the worker was and if the children could be seen. The witness then called the worker and told her that the matter had been stood down until 1:45 p.m. and that the Judge wanted to see if the parties could be brought to Court. When she spoke to the worker, she was at the Applicant’s house. She called again and told the worker that if she saw the Applicant, she should tell him that he needed to call duty counsel. During the second conversation, the worker advised her that the Applicant was not present but the mother was. They did not go into great detail, other than confirming that the children were seen and were safe. The witness had no knowledge of what the worker discussed with Mr. K.R. when he arrived, including whether or not she advised him of the Judge’s concerns for the children’s safety (the reason why she was there). The witness and the worker never discussed what information, if any, the worker provided to the Applicant. The children were not at the Court house and the witness understood from the information the worker gave the Court that they were with the Applicant. The Society took no position on the custody matter and provided the Court only with the information it had requested. The Court also asked if the worker had seen the Applicant. The witness testified that she did not direct the worker to bring the Applicant to Court or discuss with the worker any arrangements or requests to bring the Applicant to Court. According to the witness, the issue of finding the mother arose out of the Society having given erroneous information to the mother regarding the location of the proceeding.

16The worker’s case notes, referenced above, provide details regarding the events of March […], 2004. These notes were not provided to the Applicant until on or about July […], 2008, just prior to the hearing. These notes go into specific descriptive detail regarding conversations with Ms. L.F., the mother, the children and the Applicant. The notes indicate the first day of contact as March […], 2004, the subject being “Family Court Process”. The notes indicate that the worker told the mother Court was in P. on March […], 2003 [sic]. The March […], 2004 entries include speaking with Ms. L.F. at 8:30 a.m. regarding the mix up in Court location and again at 10:05 a.m. from Court regarding the Applicant’s non-attendance and the Judge’s concern for the safety of the children. At 10:45 a.m., the entry describes in great detail the worker’s arrival at the Applicant’s home; for example, they indicate that the mother was there, what the children were doing; the state of the home and that “S.M.” was present. The note indicates that the mother said she was not in Court because “she did not know where R. was or how to get there” and that she had called the Court to see if it could be adjourned to P.. The notes indicate that the worker told her she would give her a ride to R.. The notes then describe a conversation with the mother about the Applicant’s whereabouts and the status of the no contact restriction.

17The notes further describe a call from L.F. advising the worker that Court had been stood down until 1:45 p.m. and that the “judge wants the worker to bring A.L.N. down to court”. The notes describe a second call with Ms. L.F., asking about the Applicant’s whereabouts. The notes clearly indicate that “if worker sees him to have him call” duty counsel.

18The notes indicate further detailed interaction with and questioning of the children. The notes indicate that the worker left and told the mother she would return in 20 minutes to take her to Court.

19The 12:40 p.m. entry indicates that the mother told the worker S.M. had left. The worker advised her that the worker and the children would all go to Court.

20The 12:50 p.m. entry indicates that the Applicant arrived home, that the worker advised the mother to get in the car and told the Applicant that he and the mother were not to have contact. According to the notes, the Applicant asked where they were going, and the worker told him she was taking the mother and the children to Court. There are no notes offering up any explanation for the worker’s presence or for her taking the children to Court. The notes indicate that the worker asked the Applicant if he was staying in the home and he said he was and could watch the children. The notes indicate that the worker then left the children with the Applicant and went to Court with the mother. There is no mention in the notes of the worker advising the Applicant to call duty counsel.

21The Applicant, as a parent who was involved in a custody matter in which the Society had become involved at the behest of the Court, was receiving a service from the Society. The Court’s endorsement did not provide clear parameters for the Society’s involvement. The Applicant could not have expected from the limited endorsement that the Society be notified, that the Society would attend at his home and load the children into a car with the mother, when the children were in his care.

22The Board accepts the evidence of the Society that it acted on the direction of the Court. While the expectations on the Society by the Court is not clear, the Board accepts that the Society felt that it was obliged to ensure that the children were safe and that the worker took steps to do so.

23The Board also accepts that the timing set out in the case notes, which were locked into the system the day following the events in question, is the best evidence as to the timing of events that day. The Society’s evidence in this regard is corroborated by the evidence of Mr. S.M.. The Applicant was not accurate in terms of the timing of events however, this does not have any bearing on the substantive issue before the Board.

24Regardless of when the worker arrived, there is no evidence that she explained her actions to either Mr. S.M. who was babysitting for the Applicant, or more significantly, to the Applicant. The Applicant arrived to see his children being loaded into a car with their mother and a Society representative. The only explanation he got was that they were going to Court. The Board accepts that the Applicant was not told about the Judge’s concern for the safety of the children or that the children were being taken to Court because the mother advised that Mr. S.M. was no longer present. There is conflicting evidence about whether or not Mr. S.M. was present. Again, this does not alter the fact that no reasons were given for the Society’s actions. The Applicant’s evidence is that he was not told that Court had been stood down. The evidence from the case notes indicates that the Applicant was not told to call duty counsel. These latter facts go to the brevity of engagement between the worker and the Applicant and are of concern to the Board in terms of the overall lack of communication. The Board accepts that had the worker provided the Applicant with reasons, this discussion would have appeared in the detailed case notes.

25The Applicant was faced with a situation in which he had the care of his children under an interim Court order which he understood to be in effect. Yet he returned home to see a worker involved in attempting to take the children from his premises. The worker appeared to be assisting the mother who the Applicant believed was not permitted to be near his premises. The Applicant was entitled to an explanation for the decision of the worker to attend at his premises and her attempt to take the children with the mother. It appears now, that the Society had legitimate reasons for its attendance at the premises. It is less clear that they had valid reasons for loading the children into the car. In order to meet its obligations under the CFSA, the Society should have taken the courteous and respectful step of communicating to the Applicant that:

1. the Judge had expressed concerns over the safety of the children and asked that they be seen because neither parent had been at Court that morning;

2. the mother had advised that the babysitter had left and thus they had no other option but to take the children with them;

3. the worker had been told to bring the mother to court.

26Had this information been provided to the Applicant, he would have had reasons for the decisions being taken which affected his interests as the parent with the care of the children.

27The value of providing reasons is clear. It permits the participants in the child protection services to understand why something is being done. It is in the interest of fairness that participants be informed of the rationale for matters that affect their interests. The CFSA recognizes as an important purpose of that Act, that children’s services should be provided in a manner that includes the participation of parents where appropriate. What the participants do with the reasons is a separate matter. The reasons may or may not hold up under the scrutiny of an internal complaint. In this case, the Applicant may have been in a position to challenge the rationale for physically taking the children if S.M. were in fact present. Without reasons, the Applicant was without recourse to problem solve on the spot or to file a subsequent complaint. The provision of reasons, in the form of case notes, more than four years later, as part of the Board’s process does not satisfy the legislative intent.

28The Board has two remedial options for a complaint of this nature under section 68.1(7). It may:

1. order the society to provide written reasons for a decision to a complainant;

2. dismiss the complaint.

29The Board is satisfied that the only appropriate option available to it upon finding that the Society did not provide reasons pursuant to section 68.1(4)5 is to order the Society to provide written reasons for the decisions taken with respect to the events of March […], 2004.

DECISION

30The Board orders the Society to provide the Applicant with reasons for the decisions taken by the Society on and leading up to the events on March […], 2004 relating to the Society’s attendance at the Applicant’s house, its apparent assistance of the mother and its attempt to physically take the children from the premises, while in the care of the Applicant. These reasons shall be provided to the Applicant within fifteen days of the date of this decision.

Jennifer Scott

Presiding Member

Nycole Roy

Panel Member

Sheena Scott

Panel Member