G.C. v. Children’s Aid Society of London & Middlesex, 2009 CFSRB 29

CHILD AND FAMILY SERVICES REVIEW BOARD

G.C.

v.

Children’s Aid Society of London & Middlesex

REASONS FOR DECISION ON MERITS

Date: June 19, 2009

Citation: 2009 CFSRB 29

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

1The Applicant, G.C., filed an application with the Child and Family Services Review Board (the “Board”) on February 4, 2009, pursuant to section 68(5) of the Child and Family Services Act (the “Act”), regarding the internal complaints process followed by the Children’s Aid Society of London & Middlesex (the “Society”).

2The Board heard the application on June 2, 2009. The Applicant testified. The Society did not call any evidence.

3The Board must decide whether or not the Applicant’s concerns were heard by the ICRP and whether or not the Society gave the Applicant a meaningful response to those concerns following completion of its internal complaints review panel (“ICRP”) process.

BACKGROUND

4The Applicant’s relationship with his former spouse began to deteriorate in August 2007. At that time, their son was approximately fourteen months old. On September […], 2007, the Applicant contacted the Society for assistance. The Applicant was concerned about his former spouse’s drinking, the state of her mental health and the safety of their son in her care.

5The Society investigated the Applicant’s concerns. The Applicant believes that his former spouse made counter-allegations against him which the Society did not discuss with him. On the basis of these counter-allegations, the Applicant believes that the Society concluded the Applicant’s concerns were made out of malice. The Applicant asserts that this characterization of his concerns (and him) impacted him negatively in the custody and access proceedings with his former spouse.

6The Applicant met with the Society on numerous occasions to discuss his concerns and met with the ICRP on December […] 2008. At the ICRP meeting, the Applicant requested the following:

1. Confirmation that the Society did not follow up with him regarding the specifics of his opinion or the basis of that opinion and when that information was available;

2. Confirmation that statements made by his former spouse to the Society (the counter-allegations) were false;

3. Retraction or correction of the Society’s position that the Applicant’s contact with the Society was malicious in nature;

4. Confirmation of the intake worker’s statement to his former spouse not to go near the Applicant with the children and his opinion that the Applicant has a Narcissistic Personality Disorder;

5. Confirmation as to whether a mental health assessment was conducted on his former spouse by a licensed psychologist specifically regarding Dissocial Personality Disorder and Antisocial Personality Disorder;

6. Confirmation as to whether the intake worker reviewed in full the Applicant’s fax of September […], 2007.

7On December […], 2008, the Society provided the Applicant with its response to his complaint following completion of the ICRP process. The Society suggested the Applicant complete a Notice of Disagreement which would be placed on the Society’s file, along with the package of information the Applicant had provided to the ICRP. The Society determined concerns #1 to #5 were outside of the ICRP’s mandate. With respect to concern #6, the Society advised the Applicant that it was the Society’s policy and practice to review and take into consideration all information available to the investigating worker. The Society advised the Applicant that it was not in a position to provide explanations of decisions made during investigations, nor were they able to re-investigate matters.

8The Applicant filed his application to the Board on February 4, 2009. On February 11, 2009, the Board determined the application was eligible under section 68(5) of the Act.

9On March 6, 2009, the Applicant and the Society attended a settlement facilitation conducted by the Board. The following two issues were identified at the settlement facilitation, including for the purposes of any hearing:

1. The Society formed an opinion about the Applicant without giving him an opportunity to be heard and in the Applicant’s view, that opinion formed the basis for a court decision that negatively affected him. The Applicant raised this issue before the ICRP on December […], 2008.

2. This opinion of the Applicant is reflected in the Society’s records.

10The parties entered into a settlement agreement regarding the first issue. The second issue was resolved before the settlement facilitation because the Applicant had filed a Notice of Disagreement on February […], 2009, following the ICRP meeting. The settlement agreement was to be implemented by the Society by April […], 2009.

11On April […], 2009, the Applicant alleged the Society had failed to comply with the terms of the settlement agreement. On May 5, 2009, the settlement facilitator met with the parties by teleconference to determine whether the Society had complied with the agreement. On May 19, 2009, the settlement facilitator released her decision on compliance. The settlement facilitator determined that the Society had not complied with the terms of the settlement agreement. As such, she directed that a hearing take place on issue #1. This is the Board’s decision on that issue.

ANALYSIS

12When undertaking an internal complaints process, the Society is obligated to follow the procedures set out in the regulation and the substantive requirements set out in the Act. The Act requires the Society, in the internal complaints process, to listen to the Applicant’s concerns and to provide him with an explanation in response to those concerns. The relevant statutory provisions are set out below:

68(1) A person may make a complaint to a society relating to a service sought or received by that person from the society in accordance with the regulations.

(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).

(5) If a complaint relates to one of the following matters, the complainant may apply to the Board in accordance with the regulations for a review of the decision made by the society upon completion of the complaint review procedure:

1. An alleged inaccuracy in the society’s files or records regarding the complainant.

2. A matter described in subsection 68.1 (4).

3. Any other prescribed matter.

(10) Upon completing its review of a decision by a society in relation to a complaint, the Board may,

(a) in the case of a review of a matter described in paragraph 1 of subsection (5), order that a notice of disagreement be added to the complainant’s file;

(b) in the case of a matter described in subsection 68.1 (4), make any order described in subsection 68.1 (7), as appropriate;

(c) redirect the matter to the society for further review;

(d) confirm the society’s decision; or

(e) make such other order as may be prescribed.

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.

6. Such other matters as may be prescribed.

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.

13The Society did not call any evidence regarding the ICRP process that it conducted. The Applicant testified that the ICRP meeting lasted 30 to 60 minutes. He stated that the ICRP listened to his concerns, but it was clear that the members felt they did not have any authority to do anything in respect of his complaints.

14Under section 68(5) of the Act, the Board can review the Society’s decision following completion of the ICRP. The decision under review in this case is the Society’s letter of December […], 2008.

15It is apparent when reviewing the Society’s letter, that the ICRP felt it had no authority to provide the Applicant with an explanation in relation to his concerns. In its letter of December […], 2008, the Society stated:

For items one through five, it was recognized that they were outside of the Panel’s mandate…It was noted that the Panel is not in a position to provide explanations of decisions made during investigations nor are they able to reinvestigate matters.

16This conclusion is contrary to section 68(5)2 of the Act, which incorporates the Society’s obligation to comply with clause 2(2)(a) and provide him with reasons for a decision that affects his interests pursuant to section 68.1(4)4 and 5. To put it simply, when the Applicant complained to the ICRP, the Society was obligated to provide the Applicant with a meaningful answer to his complaints. In this case, the Society was required to answer the following concerns:

1. Why did the investigating worker not discuss with the Applicant the information the worker obtained from his former spouse? The Applicant believed he could disprove the accuracy of this information.

2. On what basis did the investigating worker conclude that the Applicant’s allegations towards his former spouse were made out of malice?

3. Did the investigating worker advise the Applicant’s former spouse: (a) not to go near the Applicant with the children; and (b) that he believed the Applicant had a Narcissistic Personality Disorder?

4. Was a mental health assessment performed by a qualified psychologist on his former spouse?

17While the ICRP was not authorized to provide the remedies the Applicant was requesting, i.e. to alter the information contained in the Applicant’s file, it had to listen to the Applicant’s concerns and answer those concerns. The ICRP was incorrect when it told the Applicant his concerns were outside of its mandate. The remedies requested may have been outside of the ICRP’s mandate, but the Applicant’s concerns were not. The ICRP’s error resulted in its failure to provide the Applicant with answers to his concerns.

DECISION

18Section 68.1(7) provides that after reviewing a complaint the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint; or

(f) make such other order as may be prescribed.

19The Board orders the Society, pursuant to section 68.1 (7)(d) of the Act, to provide a written response to the complaints identified in paragraph 16 above within thirty days after the issuance of this decision. The Society must answer the Applicant’s complaints in a clear and detailed manner.

Richard Linley

Presiding Member

Lorna King

Panel Member

Jennifer Scott

Panel Member