CHILD AND FAMILY SERVICES REVIEW BOARD
R.J.M.
v.
Children’s Aid Society of the District of Sudbury and Manitoulin
REASONS FOR DECISION ON JURISDICTION & MERITS
Indexed as: R.J.M. v. CAS of the District of Sudbury and Manitoulin (CFSA s.68)
1This is an application dated March 18, 2008 by R.J.M. (the “Applicant”) under sections 68 and 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The Child and Family Services Review Board (the “Board”) was asked to review complaints made by the Applicant about the Children’s Aid Society of the District of Sudbury and Manitoulin (the “Society”). The Applicant confirmed that the issues forming the basis of his complaint were accurately summarized in the pre-hearing report of May 2, 2008 as follows:
a) concerns with respect to the long delay in having access visits in his home and the subsequent reduction in the number of those visits;
b) the concern with respect to physical harm inflicted on his son by both Society workers and foster parents;
c) the Applicant’s belief and concern that the Society repeatedly threatened to deny his access visits;
d) the concern with the Society telling the Applicant that how it treated his son was not his concern;
e) the Applicant’s concerns involving where and when his son soils himself;
f) the Applicant’s concerns with respect to Society denial of approved relatives who were willing to serve as foster parents;
g) the Applicant’s concerns that his son’s current emotional problems developed while the child was in care of the Society and the child’s mother;
h) the Applicant’s concern with the Society’s inability to appreciate the Applicant’s “mental” vs “physical” health issues;
i) the Applicant’s belief and concern that the Society covers up its mistakes and brings forward false charges against him in order to transfer blame;
j) the Applicant’s concern with respect to the Society’s failure to notify him of important medical information about his son’s health.
2In the application, the Applicant claimed various remedies pursuant to section 68, but never engaged the Society’s Internal Complaint Review Procedure. Accordingly, the enumerated matters proceeded as a complaint directly to the Board pursuant to section 68.1.
3The issues outlined above were raised by the Applicant in his application or at Pre-Hearing and the parties agreed that this application would not proceed to an oral hearing before this Board until completion of the child protection trial involving the same parties in the Ontario Court of Justice in [ ]. The trial in the Ontario Court of Justice was completed on June […], 2008 and a decision released by Justice Andre Guay on July […], 2008. On July […], 2008, the Applicant requested that the Board continue with this application and a hearing was scheduled for September 17, 2008 in [ ]. The Society took the position that there is no jurisdiction for the Board to deal with any aspect of these complaints and that all matters had been before the Court or subject to another decision-making process under the Act or otherwise are outside of the jurisdiction of this Board. Society legal counsel relied in part upon subsection (8) of section 68.1 of the Act which provides as follows:
(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; or
(b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995.
BACKGROUND
4The Applicant and his previous partner are the parents of one child known as R.J. born on the […] day of October, 2001. In the summer of 2003, the mother left the Applicant and R.J. who was then almost two years old. The child resided in the care and control of the Applicant from the summer of 2003 until apprehended by the Society on May […], 2006. Before May […], 2006, there were several referrals to the Society about the Applicant and this child involving allegations of inappropriate physical or verbal discipline. The child, R.J., was placed in the interim care of his mother on August […], 2006 where he has remained since. Currently R.J. resides with his mother under the terms of the Supervision Order made for a period of twelve months with a status review to take place on June […], 2009.
5The Applicant continued to have access to the child, R.J., supervised by the Society, from the time of apprehension of the child until at least the trial in June of 2008. The decision of Justice Guay of July […], 2008 provides for access in favour of the Applicant under the supervision of the Society, provided the Applicant meets a number of conditions as set out in the decision.
ANALYSIS
6The Board must determine whether it has jurisdiction to hear the ten complaints in this matter. This determination depends on whether these ten complaints have been decided by the Court or were subject to another decision making process under the Act. Each issue was addressed separately at the jurisdiction hearing to simplify the process in order to make it easier for the Applicant to respond. The Board analysis follows the same order.
Issue A - Access Visits
7The first issue is the complaint by the Applicant with respect to the long delay in having access visits in his home and the subsequent reduction in the number of those visits. The Society took the position that the delay in having access visits in the home was not an issue before the Court and conceded that there was jurisdiction for this Board to address this issue on the merits.
8The Society noted that the Applicant never made a complaint about delay in access visits, but was simply asking the Society, at that time, for home visits because public transportation was difficult for him. It was noted by the Society that the child was apprehended on May […], 2006 and that home visits had been arranged by August […], 2006 - within about a three month period of time. The Society took the position that the second part of this complaint relating to the reduction in number of access visits was an issue before the Court and, therefore, outside of the jurisdiction of this Board. The Society provided correspondence to the Applicant dated August […], 2007 advising the Applicant of the reduction in access visits (to occur once weekly on Saturday for three hours) and setting out reasons for these changes. This correspondence was marked as Exhibit 8 at trial in the Ontario Court of Justice. The Society further made submissions that a significant reason for reducing access visits was inappropriate comments by the Applicant to the child and that these concerns were also raised on multiple occasions during the protection trial proceeding.
9The Board determined that it’s jurisdiction to hear this complaint was limited to the narrow consideration of whether the Applicant‘s concern was heard and whether the Applicant was given reasons for the delay in commencement of home visits and for access visit frequency reduction.
Issue B – Physical Harm Inflicted On Son
10The Applicant alleges that physical harm has been inflicted on his son by both Society workers and foster parents. The Society took the position that this issue was before the Court and that the Applicant had made a reference to these allegations in at least five clauses in two of his affidavits and, as well, filed photographs of the child as exhibits purporting to show bruises incurred while the child was in foster care or in the care of the mother. There was some cross-examination in respect of these allegations at trial. The Applicant discussed his concern about the use of “forceful redirection” in respect of his son and noted that there were quite a few marks on the child from time to time. It was acknowledged by the Applicant that these issues were very much before the Court in the child protection proceeding and, on that basis, the Board finds that it has no jurisdiction to deal with this issue.
Issue C – Threat To Deny Access Visits
11The third issue is the complaint by the Applicant that the Society repeatedly threatened to deny him access visits. The Society acknowledged that this concern was not an issue raised at trial by the Applicant or by any other party and conceded that the Board had jurisdiction to proceed. It was noted by the Society that this complaint may be related to Issue A above.
Issue D – Society Treatment Of Child
12The fourth complaint by the Applicant is the Society telling him that how the Society treated his son was not his concern. The Society conceded that this was not an issue at trial or otherwise in the Court proceeding, but that there were inadequate particulars provided by the Applicant in order to respond. The Applicant made some submissions with respect to this issue and indicated that this issue arose while M.D. was the Society case worker. The Board determines that it has jurisdiction to hear this complaint limited to the consideration of the interaction between the Applicant and M.D. (in the absence of any other specifics).
Issue E – Soiling Issue
13The fifth complaint by the Applicant relates to his concern as to where and when his son soils himself. It was the position of the Society that the soiling issue was canvassed extensively at trial and was also the subject matter of evidence by Dr. B., the pediatrician. The Applicant acknowledged that the issue had been dealt with somewhat by the Court, but not in respect of the core concern expressed by the Applicant as to why his son was brought to access visits in a soiled condition. Specifically, the Applicant’s concern related to why arrangements were not made to have the child change into fresh clothing before a visit. The Board determined that it will hear this complaint limited to the narrow consideration of the Applicant’s concern in respect of the child being brought to access visits soiled. In other words, were the Applicant’s concerns heard by the Society?
Issue F – Non-Approval Of Relatives As Foster Parents
14The sixth complaint by the Applicant is with respect to the Society denying approved relatives who were willing to serve as foster parents for his child. The Society conceded that this complaint was not an issue before the Court in the child protection proceeding, but was not clear as to the nature of the complaint. Particulars had not been provided by the Applicant to the Society and the applicability of section 68.1 was not clear. The Applicant made some submissions and, during these submissions, indicated to the Board that he was given an explanation as to why these relatives were not approved as foster parents and acknowledged that, although he disagreed, he had been heard by the Society and had been given reasons for this decision. On the basis of the acknowledgement by the Applicant, the Board will not hear this complaint.
Issue G – Child’s Emotional Problems
15This seventh complaint of the Applicant is that his son’s emotional problems developed while the child was in the care of the Society and his mother. It was the position of the Society that this was a significant issue before the Court in the child protection application and that all of these concerns were addressed in evidence at trial and by Justice Guay in his decision released the […] day of July, 2008. Specifically the Society submitted that the Court had found that the child’s emotional problems had developed while he was with his father and the Society noted the following finding in paragraph 32 of the decision as follows:
There is no question that R.J. is a child in need of protection. He has been abused both physically and emotionally by his father.
16The pediatrician, Dr. B., also gave evidence at trial and provided an opinion to the Court about the physical injuries to the child, the soiling issues and the emotional issues and all of which were also referred to by Justice Guay in his decision.
17The Applicant agreed with the Society that all of these considerations were before the Court and very much a core issue during that proceeding. It is the determination of the Board that there is no jurisdiction to deal with this complaint since this matter was before the Court in the child protection proceeding within the meaning of sub-section 68.1(8).
Issue H – “Mental” Versus “Physical” Health Issues
18The eighth complaint of the Applicant is the allegation that the Society had an inability to appreciate the Applicant’s “mental” versus “physical” health issues. The Society took the position that these matters were before the Court and that there was some evidence in the child protection proceeding in respect of the Applicant’s mental health history, as well as some evidence with respect to the Applicant’s physical health.
19The Applicant made submissions with respect to this concern and was able to narrow his complaint to a Court affidavit filed by the Society and a provision in this Affidavit relating to his request for home visits due to difficulty with public transit. The Applicant’s specific allegation is that the Society was stating that his mental health made public transit difficult for the Applicant when in fact, the correct position would have been (in the view of the Applicant) that his physical health made public transit difficult. In other words, the Applicant felt this was misleading since it was his physical condition of peripheral poly-neuropathy difficulties that made this mode of transportation difficult and not any mental health issue.
20Having heard detailed submissions from the Applicant, the Board finds that this complaint relates to one word (perhaps used in error) in a Society affidavit. The Society affidavit was filed with the Court and the Applicant could have (and may have) responded in that forum. The Board has no authority to alter or correct an affidavit and finds that it has no jurisdiction with respect to this issue which was before the Court within the meaning of subsection 68.1(8).
Issue I – Cover Up And False Charges
21The ninth complaint by the Applicant is his belief and concern that the Society covers up mistakes and brings forward false charges against him in order to transfer blame. The Society took the position that it could not address the cover up allegation in the absence of any particulars from the Applicant and surmised that the “false charges” related to a police investigation of child abuse in respect of R.J. around the time of apprehension which did not lead to criminal charges against the Applicant. The Society took the position that this was an independent investigation by the police and that the Society did not have any role outside of its mandate to report concerns of this nature to the police.
22In submissions, the Applicant was not able to provide any examples to support the allegation that the Society covers up its mistakes, but did make a specific submission that the Society case worker, M.D., was instrumental in having bogus charges laid against the Applicant. The Applicant indicated that he would be calling a witness, J.H., to give evidence with respect to this concern. In the absence of any other particulars from the Applicant, the Board finds that it’s jurisdiction to address this complaint is limited to the allegations made in respect of M.D. and bogus charges.
Issue J – Medical Information
23The tenth complaint made by the Applicant is that the Society failed to notify him of important medical information about his son’s health. The Society made submissions that extensive evidence was given or filed in the child protection proceeding setting out medical information concerning the child and his physical health, emotional problems and epilepsy diagnosis. The Society did acknowledge that the specific allegation of a failure by the Society to notify the Applicant of important child medical information was not specifically before the Court and the Society conceded Board jurisdiction.
24The Applicant made his submissions and indicated that he tried to get information from the Society, but was refused. The Board determines that it has jurisdiction to deal with the complaint by the Applicant that the Society failed to notify him with respect to medical considerations involving his son.
JURISDICTION SUMMARY
25The Board has determined, on the basis set out above, that it has jurisdiction to proceed with issues A, C, D, E, I and J to the extent indicated and that there is no jurisdiction to proceed with issues B, F, G and H.
HEARING ON THE MERITS
26A hearing on the merits took place for issues A,C,D,E,I and J and the Applicant gave evidence on his own behalf and called one witness, a former neighbour, J.H.. The Society called evidence from two case workers A.R. and M.D.. At the end of the Applicant’s case, counsel for the Society made a motion to dismiss some complaints on the basis that no evidence had been given by the Applicant to support a finding by this Board in favour of the Applicant. After hearing submissions from the Society and from the Applicant in respect of this motion, it was the decision of the Board that issues D and E be dismissed on the basis of lack of evidence.
27With respect to issue D (the Society telling the Applicant that how the Society treated his son was not his concern), it was the evidence of the Applicant that this concern arose out of an incident that took place at the school and an altercation involving R.J. This incident took place immediately before the child was apprehended by the Society and there was no evidence given by the Applicant to link this allegation to the Society or to the case worker at that time, M.D.. The evidence given by the Applicant with respect to this concern fell somewhat outside of the parameters of issue D as defined in the Pre-Hearing Report. Due to lack of evidence, this complaint is dismissed.
28With respect to issue E (the concern involving soiling), it was the evidence of the Applicant that he made some complaints about this concern, but was not sure to whom. At best, the only evidence given by the Applicant with respect to this issue is that he may have expressed these concerns to the volunteer driver. Since there was no evidence that this concern had been brought to the attention of the Society, there was no basis upon which the Board may make a finding in favour of the Applicant in respect of this issue which is dismissed.
29It was agreed that issues A and C would be addressed together as being related access issues. The Applicant gave evidence that initially he was having two visits weekly with his son and that those visits were going well. The Applicant was requesting access at home after his son had been apprehended since transportation was physically difficult for him considering his medical condition. The Applicant spoke of access being reduced from six hours weekly to three hours weekly and gave evidence that he was told this reduction took place due to the soiling problem. The Applicant did acknowledge that home visits were ultimately arranged and that he had been given some reasons for the delay by the Society and, in particular, the concern that if child abuse had occurred in the home, access visits there could be traumatic for the child.
30With respect to the delay in having home access, it was the evidence of M.D. that there is a process to be followed before moving to such visits. The witness explained that initially visits are set for a neutral location and, in particular, in a verified abuse case where there are safety considerations. In this situation, visits initially took place in the office and then moved to the community and were to take place in the R. home after assessment of their suitability. The process in respect of the R. family commenced in June but by July, the R.s had withdrawn and were no longer interested in supervising access or otherwise caring for the child.
31The witness indicated that she then requested a PSW to supervise home visits and that this process would take four to six weeks. The witness gave further evidence that she had transported the Applicant on two or three occasions for access visits to help accommodate his concerns around public transportation. The witness further indicated that she met with the Applicant from time to time to discuss his needs and spent time explaining the access process to the Applicant.
32With respect to (issue C) the threat by the Society to deny access visits, the Applicant was unable to recall particulars, but did recall continually asking to see a Society supervisor about making up access time with the child. No other evidence was given by the Applicant with respect to issue C and the only evidence given by him related to issue A.
33The Society noted again that access considerations and concerns were addressed extensively at trial and noted that correspondence had been sent by the Society to the Applicant dated August […], 2007 addressing access decisions in some detail and, in particular, the consideration of access reduction. This correspondence was signed by the child protection worker, A.R., and the supervisor, C.P., and was an exhibit at trial. The first paragraph provided as follows:
After a review in circumstances, the Society has decided that in the best interest of the child, access visits will now occur once weekly on Saturday for 3 hours. Community outings will be available to you should you choose to do so. This decision was made for several reasons. The first being a recommendation received from Dr. B. stating that it is not in the child’s best interest to have visits with you, due to various difficulties and behaviors that the child continues to demonstrate. Since your child has been removed from your care, you have not participated in any parenting programs, as stated in the Court Order and as recently as last month, you have advised the Society that you will not participate in any programs.
34On the basis of the evidence given to the Board, it is the decision of the Board that issues A and C be dismissed. The Board accepts the evidence of the Society case worker, M.D., that the concerns of the Applicant with respect to access were heard and that the Applicant was given reasons for decisions made by the Society affecting his interests.
35The Applicant provided evidence with respect to issue I (that the Society covers up mistakes and brings forward false charges) and made extensive reference to the Agenda book from the school for R.J. and the fact that one page in the Agenda book was missing for a relevant occurrence in 2006. The Applicant was unable to say who removed this page and it was clear that this book would have gone back and forth between the school and the foster parent caregiver and there was no evidence (a suspicion only) that this page was removed by the Society. The Applicant gave some evidence with respect to the Society bringing false charges against him in order to transfer blame and made reference to the earlier investigation involving the police which did not result in any charges being laid.
36It was the evidence of M.D. that she did not see the school Agenda book until July and that after apprehension, this book would have gone back and forth between the foster parents and the school. The Applicant had made a written comment in the Agenda on May […], 2006 about his son’s bloody lip and when asked, the Applicant indicated that he did not approach the school to inquire about the missing notation. With respect to this aspect of this complaint, the concern may be with the school and not with the Society.
37With respect to the consideration of false charges being brought by the Society, the Applicant called J.H. as a witness. She spoke of a meeting with the case worker, M.D., who had pulled into her driveway and discussed an incident involving R.J. and a nosebleed. The witness indicated that Ms. M.D. had told her that the police would be laying charges against Mr. R.J.M. and this witness gave further evidence of the facts relating to the incident leading up to the apprehension of the child, which evidence had also been provided by this witness at trial in an affidavit. Ms. J.H. also spoke about a police officer interviewing her and suggesting that there was pressure from the Society upon the police to lay charges. No reference was made to this witness by the police of any pressure by the Society to lay “false or bogus charges” and no such suggestion was made by the interviewing police officer or in the affidavit filed by this witness in the Court proceeding.
38The Applicant had no other evidence to add in respect of these issues and it is the decision of the Board to dismiss this complaint on the basis that there is no evidence upon which to make a finding against the Society on the criteria in section 68.1.
39The Applicant gave evidence with respect to Issue J, being the alleged failure of the Society to notify him about important medical information involving his son. The Applicant indicated initially that his son was apparently going through epilepsy and complained that he was only notified about three months later. In cross-examination, the Applicant acknowledged that his only complaint related to the epilepsy condition and that he did get his information from the Society. It was the evidence of A.R., that the Applicant was given relevant medical information in respect of the child upon receipt and that this information was not withheld or delayed. A.R. also confirmed that medical information and reports were filed in the Court pleadings and other documents (such as Plans of Care) and were available to the Applicant in that forum. The evidence given by the Applicant was not very clear on this point and the Board accepts the evidence of the Society case worker with respect to this complaint which is dismissed.
DECISION
40For the reasons set out above, all of the complaints made by the Applicant are dismissed either for lack of jurisdiction pursuant to subsection (8) of section 68.1 or on the merits pursuant to subsection (7)(e) of section 68.1.
Frances Sanderson
Presiding Member
Ruth Ann Schedlich
Panel Member
_
Gregory Price
Panel Member
Dated at Toronto, Ontario this 10^th^ day of December, 2008.