A.J.D. v. Children’s Aid Society of Hamilton, 2009 CFSRB 52

CHILD AND FAMILY SERVICES REVIEW BOARD

A.J.D.

v.

Children’s Aid Society of Hamilton

REASONS FOR DECISION ON MERITS

Date: September 18, 2009

Citation: 2009 CFSRB 52

Indexed as: A.J.D. v. CAS of Hamilton (CFSA 68)

INTRODUCTION

1On April 24, 2009, A.J.D. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Children’s Aid Society of Hamilton (the “Society”) pursuant to sections 68.1(4)4 and 5 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The application was found to be eligible for review on May 1, 2009. The Applicant filed a second application on June 17, 2009 which attached a letter from the Society in reply to an Internal Complaint Review Panel (“ICRP”) that had taken place on June […], 2009. That application was eligible under s.68(5) of the Act. At a Pre-Hearing Conference on June 24, 2009, the two applications were joined.

2The Applicant summarized his complaints into three issues: whether the Society gave him an opportunity to be heard in making its decision that excessive use of force was verified; whether the Society heard his concerns regarding manipulation of his children by their mother (his ex-spouse); and whether the Society contravened the Act by failing to notify his band as soon as it became involved with his family. The Applicant is [ ] from the [the Band] of the [ ].

3A hearing into this matter was held in Hamilton, Ontario on August 19 and 20, 2009.

BACKGROUND

4The Applicant has two children: A., age 8 and J., age 5. The Applicant and the children’s mother have been separated since shortly after J.’s birth. The children are currently in the custody of their mother and the Applicant has access rights. There are ongoing Court proceedings related to custody and access.

5The Applicant contacted the Society on a number of occasions regarding his concern that the children’s mother, Ms. M., has been manipulating the children and emotionally abusing them through parental alienation. The Applicant participated in an Internal Complaint Review Panel (ICRP) meeting on October […], 2008 regarding this concern.

6On March […], 2009, Dr. O., the children’s family doctor, contacted the Society with a concern that J. had an abrasion on his right upper chest, which J. told him was caused in a tickling incident which occurred during the March break with his father. Ms. S.V., Society intake worker, was tasked with conducting an investigation related to the concern. She spoke with the Applicant on March […], 2009 to inform him of the investigation, and asked that he voluntarily suspend access. The Applicant agreed in order to give the children “a break from a contentious atmosphere”.

7As part of her investigation Ms. S.V. interviewed the children, and was told by A. that the Applicant repeatedly tickled the children with his fingers and thumbs in a forceful manner, and that he wouldn’t stop when asked to. A. showed Ms. S.V. pinch marks on her forearms, saying they were from the same incident. Ms. S.V. reported that the children told her they were afraid of their father. The Applicant was interviewed by Detective L. and Ms. S.V. on April […], 2009. He acknowledged tickling the children but denied they were ever hurt, that they ever asked him to stop, and stated that everyone was laughing the whole time. He denied that the children are afraid of him, and requested the Society to investigate whether the children were being manipulated by their mother into making the allegations. No charges were laid.

8When Ms. S.V. completed her investigation, a meeting of the Society’s Consultation and Supervision Team (“CAST”) took place and reached a conclusion that there had been “use of excessive physical force” by the Applicant. The Society also found there were “concerns related to the children’s risk of emotional harm as evidenced by their behaviours which they have been exhibiting.” Ms. S.V. called the Applicant on April […], 2009 to inform him of the findings. It was confirmed in a letter dated May […], 2009. The Applicant vehemently denies the findings of use of force.

9The file was transferred from “intake” to “ongoing services” on April […], 2009, with J.L. being assigned as the Family Services Worker. The Applicant first met with Mr. J.L. on May […], 2009 when the two had a three and one-half hour meeting. The Applicant began supervised access with his children at the YMCA offices on May […], 2009. Between March […] when he consented to suspend access visits with his children, and April […] when supervised visits began at the YMCA, the Applicant sent numerous letters to the Society asking for them to facilitate access and investigate his concerns of manipulation by his ex-wife, and telephoned on numerous occasions.

10Following the Applicant’s April 24, 2009 application to the Board, Mr. K.V., Quality Assurance and Complaints Review Officer for the Society, organized an internal complaint review panel. The ICRP session took place on June […], 2009, and the panel forwarded its response to the Applicant on June […], 2009. The Applicant was not satisfied with the response and filed a second application with this Board on June 17, 2009.

RELEVANT LEGISLATION

11The Board has considered the following legislative provisions in arriving at its decision:

68 Application for review by Board

(4) 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)

68.1(4) Matters for Board Review

The following matters may be reviewed by the Board under this section:

(4) Allegations that the society 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.

2(2) Duties of Service Providers

Service providers shall ensure,

40that 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 (7) After reviewing the complaint, the Board may,

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

ANALYSIS

Issue #1: Did the Society fail to provide the Applicant with an opportunity to be heard when decisions affecting his interests were made, or to hear the Applicant when he had concerns about a service he was receiving?

(a) child protection investigation

12The Applicant alleges that he was not provided with an opportunity to be heard during the investigation into whether he used excessive force. The Applicant eloquently described how the consequence of the Society’s decision to “verify” the use of force was to severely impede his ability to parent his children.

13The Applicant complains that by conducting a flawed investigation following the March 24th “pinching” incident, the Society failed to hear his side of the story. The Applicant believes the Society’s investigation was flawed for the following reasons:

(1) the Society was biased against him because it believed misinformation given by his ex-wife, and rejected his version of events out of hand for no valid reason;

(2) the Society incorrectly contains in its files a notation that he “admitted” to the use of force, tainting all future interaction;

(3) the Society failed to interview his partner, E.J., who was in the home at all relevant times and made herself available for an interview;

(4) the Society failed to interview his mother D.H., at whose home the children stayed that night and who bathed the children and saw no evidence of force;

(5) the Society failed to notice the inconsistencies in J.’s version of events. He first said he caused the abrasion himself, before later accusing his father;

(6) the Society did not consider the conduct of the children which in the Applicant’s view, proves they are not afraid of their father but are being coerced by their mother into making allegations. Evidence proving the children’s good relationship with their father included video tapes and photographs provided by the Applicant, and the opinions of the YMCA access supervisors.

14The Applicant feels the Society has a tainted view of him due to false allegations made by his ex-wife, leaving him at a severe disadvantage by having to prove his innocence. This has affected the way he interacts with his children, by forcing him to see his children in artificial supervised access centres, and forcing him to use home videos and photos as proof the children do not fear him. The Applicant continually attempts to find evidence to present to the Society that his children are being manipulated, and in his view, the Society continually finds it insufficient, yet fails to do any investigation of its own.

15The Society offered its Intake worker, Ms. S.V., as well as its Complaints Officer Mr.V., for cross-examination by the Applicant. The Applicant indicated that he wished to cross-examine two other staff members at the Society who were not present at the hearing: Executive Director D.V. and Case Worker J.L.. The Applicant was invited by the panel to give evidence in his possession related to his dealings with other Society staff. The panel confirmed that it would take into consideration the fact that the Applicant was not able to obtain direct evidence from all the witnesses he would have liked.

16The Applicant testified that he never hurt his children, nor had he admitted doing so, nor were they afraid of him. Ms. S.V.’s belief that he admitted the excessive use of force, he stated, tainted the Society’s view of him and even found its way into an affidavit before the Court.

17Ms. S.V. testified she did not believe the Applicant admitted to an excessive use of force, but admitted to using his fingers and thumbs in the incident in which she concluded the children were harmed. The Applicant presented evidence regarding how Ms. S.V. stated her findings to CAST, and their impact. For example, a draft version of the ICRP response letter dated June […], 2009 indicates that he made an “admission”.

18Mr. K.V. testified that he reviewed the draft ICRP response letter and made a number of notes using “track changes” to receive clarification by various Society workers before the letter was finalized. One of those notes was asking for clarification as to why another adult in the home had not been interviewed as part of the investigation. The response from Ms. S.V.’s supervisor, also visible on the “track changes” version of the draft, was:

“K.V. - he admitted to it on tape at the CAB office with S.V. and a CAB officer present. Also the children made clear disclosure of the incident. It is not so much that no one mentioned them being present – it was kind of moot given the Children’s disclosures and dad’s admission.”

19Mr. K.V. testified that he was asking for internal clarification as to whether the Applicant’s spouse Ms. E.J., and his mother Mrs. D.H., had been interviewed. He agreed that he wanted to confirm with the investigators, the reasons why they had concluded that excessive use of force was verified. He was satisfied that the final letter accurately reflected their reasons for coming to the conclusion they did.

20The Applicant also noted that Ms. S.V.’s Transfer Summary includes a “verification checklist” which includes a number of items which were not completed, including the items “interviewing all adult members of the household”, and “observation of interaction of children with parent”. Ms. S.V. testified that the items on the check-list are simply a guideline, and not always relevant to every investigation. In this case, she testified, the Applicant told her during the investigation that he was with the children on the day in question, and involved in physical interaction which he termed as “tickling”. She considered this sufficient to confirm that they were talking about the same incident in which the children alleged being hurt, and it was the Applicant who applied the force. While the Applicant saw the activity as fun, in her view, the children viewed the same activity as hurtful. Whatever the Applicant’s interpretation of the incident, it was clearly the same incident they were talking about.

21Ms. S.V. testified that A.’s affect during the interview was very convincing. She was sobbing, almost hyperventilating, to the point she had difficulty getting her words out. Ms. S.V. felt that with the doctor’s concerns, A.’s statements, and the Applicant’s agreement that he was involved in the incident described, no further investigation was needed. She testified that she received the Applicant’s video tapes and viewed them, but without understanding the context of the situation; i.e. why the children were crying before being transferred into the Applicant’s car at the time of access transfer, she could make no conclusions. Further, the transfer videos were taken some 1.5 years ago. Ms. S.V. testified she didn’t interview E.J., the Applicant’s partner, because she “didn’t know” they lived together. She testified that at the CAST meeting a decision was made that there was sufficient information to verify the excessive use of force, without further interviews.

22Ms. S.V. agreed that the police did not press charges because there was insufficient proof to proceed. The Society uses the lower “balance of probabilities” burden of proof, however, not the criminal standard used by the police. As a result the Society found the use verified, while the police did not.

23It appears Ms. S.V. was quite taken with A.’s affect in her description of events. The panel, too, heard convincing evidence from the children’s grandmother, Mrs. D.H., that A. is a “sympathetic cryer” and is prone to excessive emotion. As a result of her acceptance of A.’s statement, Ms. S.V. viewed the Applicant’s statement that he tickled his children as an “admission” that he caused the marks on J.’s shoulder and A.’s arm. Her conclusion was shorthanded on the “Investigation and Closing/Transfer Summary” to say “Insufficient evidence to lay criminal charges although the father did admit to pinching the children.” The Applicant is adamant that he made no such admission.

24J.W., Senior Counsel for the Society, submitted that the Applicant was heard at every stage of the investigation and given reasons for the Society’s finding that use of excessive force was verified, but that Mr. A.J.D. simply does not agree with the decision. In particular, he highlighted through cross-examination of the Applicant that the referral regarding pinching came from Dr. O., the children’s family doctor, and written proof was provided; that the Society did not refuse to view the photographs, but rather did not have copies as they were given to the police only; and that supervision of the access visits was Court-ordered, rather than being a Society decision.

25In addition, Ms. S.V. testified that she returned the Applicant’s calls until he told her he wished only to receive written communication. She interviewed him, read all his information and viewed the video tapes he dropped off.

26The second part to the Applicant’s complaint about the investigation relates to his concerns of parental alienation. He questioned whether the Society considered in any meaningful way the intersection between his concerns that the children are being manipulated by their mother, and their recounting of the events during March break 2009 with their father. While Ms. S.V. testified that she did consider the Applicant’s concerns of manipulation during her investigation, it is nowhere to be found in her notes taken at the time, or letters to the Applicant. Rather, there is evidence that she saw the two concerns as separate, replying to the Applicant on one occasion that she was only investigating the excessive use of force allegations, and did not wish to be involved in their custody and access issues. Ms. S.V. testified that A.’s affect during the interview was very upsetting, and that she was not convinced a child could create that affect. She went on to say there was “no evidence to suggest it was made up.” However, the Applicant provided considerable evidence that the genuineness of the statement should have been questioned, and at the very least be verified. In fact, the Society recognized that the children were indeed at risk of emotional harm, evidenced by the fact it added another “code” to the file after the interview. This Applicant’s explanation of the source of emotional abuse, until such time as it was ruled out, should at least have been seen as plausible, which could in turn impact on the excessive use of force findings.

27In its analysis of the applicant’s complaint regarding the investigation, the Board has regard to section 15(4) of the Act which directs that a society “shall provide the prescribed standard of services in its performance of its functions”. One of those functions is to investigate allegations that children may be in need of protection. The Child Protection Standards are therefore requirements under the Act.

28Standard no. 4 deals specifically with “Conducting a Child Protection Investigation”. Standard 4 states that Family based investigations include the following steps, and must include the first five:

1. • face-to-face contact and interview with the alleged victim
2. • interview or direct observation of other children residing in the home
3. • interview of the non-abusing caregiver
4. • direct observation of the child’s living situation
5. • interview of the alleged perpetrator of the maltreatment

6. direct observation of the referred child and his/her parent/caregiver

7. interviews with witnesses

8. use of a referral eligibility screening tool to assist in determining who else may be at risk

9. interviews of all other adults living in the home

10. gathering evidence from other professionals involved with the child

11. consideration of the need to seek a warrant/telewarrant.

• denotes mandatory steps

29Rather than being an optional guideline for investigators, these steps are mandatory. They are designed to ensure fairness to all parties involved in an investigation. To use the Applicant’s language, one could say they are designed to ensure a “bucket of red paint” is not thrown on anyone. If the Society had followed the Standard, that would be strong evidence that the Applicant had been heard.

30Ms. E.J. and Mrs. D.H., both “non-abusing caregivers”, were not interviewed. The Society did not directly observe the children’s living situation with their father. In addition, it is not clear that Ms. S.V. turned her mind specifically to the impact of the Applicant’s manipulation concerns on the excessive use of force allegation. The Board finds that Standard no. 4 was not followed by the Society in its investigation in this case.

31Under section 68.1(7)(c) of the Act the Board has the power to “order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act” (emphasis added). Given that the investigation has been completed, it would be moot for the Board to order that further interviews take place. We therefore order that a note be placed on the Applicant’s file reflecting this decision of the Board.

(b) concerns regarding emotional harm

32In addition to his concerns that manipulation should have been considered in the child protection investigation, the Applicant also alleges the Society failed to hear him when he raised concerns that his children are being emotionally harmed through parental alienation. He submits the Society failed to investigate his concerns of emotional abuse by the children’s mother.

33The Applicant established through examination of witnesses that the Society has no policy on “parental alienation”, and does not specifically investigate these concerns. Ms. S.V. testified that concerns of emotional harm, however, are investigated.

34Ms. S.V. testified that she became involved in the file to investigate a concern raised by Dr. O. regarding excessive use of force. She stated that previous involvement by the Office of the Children’s Lawyer in this family’s dealings with the Society resulted in a Court recommendation that A. be assessed by Dr. C., a Paediatrician specializing in children’s mental health. To her mind, she testified, the Applicant’s concerns about emotional harm were being addressed through the referral to Dr. C..

35Ms. S.V. confirmed in her testimony that determining the causes of emotional harm, including parental alienation, is a complicated task outside the ambit of the Society’s abilities. When it became clear the referral to Dr. C. would not address the Applicant’s concerns, she referred the family to the Child Advocacy Assessment Program (“CAAP”) through McMaster University. Indeed, the Applicant filed a letter dated July […], 2009 from Dr. C. which confirms that “it is beyond the scope of my practice to assess allegations of abuse, poor parenting, parental alienation, family function and adjustment or related issues such as custody and access disputes.” The Applicant testified that Mr. J.L. repeated the offer of a CAAP referral when they met on May […], 2009, but that he declined this offer as he did not receive assurances it would be culturally sensitive to [ ] values.

36The Society submits that the Applicant was heard regarding his manipulation concerns on many occasions. Ms. S.V. accepted the Applicant’s phone calls and letters. Reply letters were sent from Ms. S.V., Mr. J.W. and Mr. K.V.. The Applicant spoke to Ms. S.V. in person, had a four-hour meeting with the Family Services Worker J.L., and two separate internal complaint review panels were struck: the first on October […], 2008 to deal with A.’s crying at transition from mother to father and the Applicant’s belief it was due to manipulation by her mother; and the second one on June […], 2009 to deal with the present complaint.

37We find the Society heard the Applicant with respect to his concerns of child manipulation. The Society’s reply on the issue of manipulation was that it does not have the expertise to determine its existence but could refer the Applicant to an agency, CAAP, that has the expertise. The referral to CAAP was a recognition by the Society of its limitations in diagnosing reasons why a child may be exhibiting behaviours which indicate they have suffered emotional harm, and an attempt to provide appropriate referrals. The Applicant is clearly dissatisfied with the Society’s lack of policy on parental alienation and its refusal to pronounce on whether manipulation is taking place in this case, but he was nonetheless heard by the Society. Although no guarantees could be made to the Applicant that CAAP assessors have extensive knowledge of [ ] culture and traditions, it appears to be the only available means to try to get at the root of the children’s symptoms of emotional harm.

38Mr. J.W. repeated the hope at the hearing that the Applicant would agree to have the children assessed at CAAP. The panel echoes this hope.

c) complaint review procedure

39The Applicant’s communications with the Society continued after the child protection investigation was concluded. His concerns included the conduct of the investigation, manipulation concerns, and facilitation of access with his children. We find the Society gave the Applicant an opportunity to be heard regarding his concerns post-investigation. Mr. J.L. held an extensive meeting with the Applicant. Mr. K.V. testified that all of the Applicant’s material was taken into account at the ICRP. As a result, we dismiss the Applicant’s second application to the Board, which is the s.68(5) portion of the application.

Issue #2: Did the Society fail to give him reasons for a decision it took that affected his interests?

40We have outlined above that the investigation could have been a deeper one, which would have given the Society additional information on which to base its decision. Nonetheless on the issue before the Board, we find the Society did an adequate job of communicating to the Applicant what its findings were and how it conducted the investigation, as well as its restrictions in dealing with parental alienation and its referral to CAAP on May […], 2009.

41The Society appears to have made a sustained effort to respond to the Applicant on every concern he raised. Ms. S.V. attempted to explain over the telephone on April […], 2009 the reasons why she concluded the abuse was verified. The Applicant stated he did not understand and asked for the reasons in writing, which were forwarded May […], 2009. In the meantime, Mr. J.W., Mr. J.L. and Mr. K.V. had contact with the Applicant over the telephone and Mr. J.L. met with the Applicant.

Issue no. 3: Notification of the Applicant’s Native Band as required under the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html)

42The Applicant alleges the Society has an obligation under s.213 to notify the band or native community as soon as it becomes involved with an aboriginal family. He argues that in his case, the Society should therefore have notified the [the Band] of the [ ] on March […], 2009 when it began its investigation. The Society has a history with the family and was aware of his aboriginal roots, he argues. The Applicant identified this concern in a letter to the Society’s Executive Director on April […], 2009.

43The relevant section reads as follows:

213. A society or agency that provides services or exercises powers under this Act with respect to Indian or native children shall regularly consult with their bands or native communities about the provision of the services or the exercise of the powers and about matters affecting the children, including,

(a) the apprehension of children and the placement of children in residential care;

(b) the placement of homemakers and the provision of other family support services;

(c) the preparation of plans for the care of children;

(d) status reviews under Part III (Child Protection);

(e) temporary care and special needs agreements under Part II (Voluntary Access to Services);

(f) adoption placements;

(g) the establishment of emergency houses; and

(h) any other matter that is prescribed.

44The requirement to consult with a band or native community is part of an aboriginal person’s right to be heard. The band or native community may assist the society in understanding the context, the culture, or the native person involved with the society. For this reason, the Board has considered this issue in the context of the Applicant’s s.68 and 68.1 applications.

45The parties have different interpretations of the phrase “provides services or exercises powers”, resulting in different points of view as to when the consultation should have taken place. The Society argues that its obligation to consult with a native band comes with its exercise of power; it is not triggered through the Society’s duty to investigate child protection concerns. The Society argues that its obligation to consult with the Band began after the excessive use of force allegation was verified, when ongoing services were offered on April […].

46Mr. J.W. explained the Society’s position in a letter to the Applicant, dated April […], 2009:

“The Society had opened a file for abuse investigation purposes only and at that time no services per se were being offered to you or Ms. M.. At this time your file is being transferred to ongoing services and attention will be given to the requirements and guidelines regarding Indian and native families.”

47Ms. S.V. called the Band on April […], 2009, and was told they do not get involved in custody disputes. The Applicant testified that he spoke to a Band representative the day before a motion by Ms. M. was to be heard in Court, and was told that they were notified too late to appear in Court, and that they do not get involved in custody disputes.

48The earliest point in a Society’s involvement with an Aboriginal child at which the Regulations require a Society to consult with that child’s Band or native community is at the stage of developing a safety plan. The Regulations do not prescribe consultation with a Band or native community where an investigation is taking place to determine whether a safety plan is necessary. This mirrors the list included in s.213 itself of examples of an exercise of power where a band should be “regularly” consulted.

49Both s.213 and the Regulations refer to an exercise of power with respect to an aboriginal child. A society does not exercise its powers to protect a child until it determines the child needs protection; that is, upon completion of an investigation.

50The Board finds that the Society has not breached its obligation to notify the Applicant’s Band at the time the child protection concerns were investigated as there was no such clear obligation.

51The Applicant raised a concern regarding the Society’s obligation to notify his Band on April […], 2009. We find that the Society communicated to the Applicant in Mr. J.W.’s letter of April […], 2009 its policy on consulting with his native community. It contacted the [the Band] in accordance with its policy, on April […], 2009. As a result, we find the Society did not contravene s.2(2)(a) or 68.1(4)4 in this regard.

DECISION

52The Board finds that the Society failed to hear the Applicant during its child protection investigation. Given that the investigation has been completed, it would be moot for the Board to order that further interviews take place. We therefore order that a note be placed on the Applicant’s file reflecting this decision of the Board.

53The Board further finds that the Society responded to the Applicant’s complaint and gave him reasons for decisions it made. While the Applicant may have valid grounds to disagree with the Society’s reasons, he was given an opportunity to be heard and then to express his reasons for disagreement after the decision was made and communicated to him. This portion of the application is therefore dismissed.

Wendell White

Presiding Member

Heather Gibbs

Panel Member

Frances Sanderson

Panel Member