CHILD AND FAMILY SERVICES REVIEW BOARD
M.D.Q.M.
v.
Children and Family Services of York Region
REASONS FOR DECISION
Date: November 4, 2009
Citation: 2009 CFSRB 62
Indexed as: M.D.Q.M. v. Children and Family Services of York Region (CFSA s.68)
INTRODUCTION
1On October 23, 2009, the Child and Family Services Review Board (the "Board") heard an application by M.D.Q.M. (the "Applicant") regarding complaints against Children and Family Services of York Region (the "Society") pursuant to section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the "Act").
2At a pre-hearing on September 22, 2009, the Applicant's issues were listed and confirmed to be as follows:
- That the Applicant was not heard by the Society in respect of the tape recording made by the Applicant of her son relevant to allegations of sexual abuse of the child by the father.
- That the Society has not provided the Applicant with reasons for decisions made by the Society affecting the interests of the Applicant in respect of investigation of sexual abuse of the child after the tape recording made by the Applicant of her interview with the child was provided to the Society in June of 2009.
- That the Applicant has not been given an opportunity to be heard by the Society Supervisor, J.R., in that the Applicant left numerous telephone messages and sent e-mails to Mr. J.R. requesting a meeting to discuss her concerns and received no response.
- That the Society has inaccurately recorded information in the Applicant's file which the Applicant wishes to have corrected.
3At the hearing on October 23, 2009, the Board first heard arguments on the Board's jurisdiction to hear issues a, b, and d. The Board rendered an oral decision on jurisdiction with reasons to follow and proceeded directly to hear the merits of the complaint that it determined it had jurisdiction to hear. This decision outlines the Board's reasons with respect to both jurisdiction and merits.
BACKGROUND
4The Applicant is the mother of F.P.S. (d.o.b.[...]April, 2003). The child is in the custody of both parents on consent of the parties and as the result of court proceedings held on June [...], 2009. On June [...], 2009, the Applicant provided an audiotape to the Society in which she alleged that her son disclosed sexual abuse by the father. The Applicant's complaint relates to how the Society dealt with this matter.
JURISDICTION
Issue a: That the Applicant was not heard by the Society in respect of the tape recording made by the Applicant of her son relevant to allegations of sexual abuse of the child by the father.
Issue b: That the Society has not provided the Applicant with reasons for decisions made by the Society affecting the interests of the Applicant in respect of investigation of sexual abuse of the child after the tape recording made by the Applicant of her interview with the child was provided to the Society in June of 2009.
5The Society presented its argument on jurisdiction first. Both issues regarding the recording registered by the Applicant were discussed together. The recording, provided to the Society on June [...], 2009, is a conversation between the Applicant and her son in which, the Applicant alleges, her son disclosed sexual abuse by the father. The Society argued that the issue was raised and dealt with at the case/settlement conference held on June [...], 2009 at the Superior Court of Justice in [ ]. During that same case/settlement hearing, the Applicant agreed to an access schedule for the father as well as to joint and shared custody of the child. Counsel for the Society submitted the transcripts of the proceedings of the Court conference (R1) and of the minutes of the agreement between the Applicant and her ex-partner and his mother (R2) dated June [...], 2009. In both of these documents, the issue of the tape recording is addressed.
6The Applicant testified that not everything was dealt with in Court, that the investigation was not done appropriately; that the right questions were not asked to her son when he was interviewed; and that the safety plan was not being followed.
7The transcript of the case conference held on June [...], 2009 in the Ontario Superior Court of Justice relates the discussion between the Court and counsel regarding the tape recording. The Applicant was represented as well as her son. The transcript described how the Applicant felt her son was sexually abused by his father, that he missed karate classes because his bum was hurting, what the Society did once they received the referral, the interviews of the child who never disclosed sexual abuse by his father to the Society, the medical exam by the [Hospital] SCAN unit. The child describes happy and comfortable times with his father, his grandmother and his mother. It states the child seems well adjusted and happy. The teacher who was interviewed stated that: "He had absolutely no concerns about the 6 year old being sexually molested and that he was performing at the top of his class". The relationship between the mother and the father was good until April 2009 when the Applicant asked the father to marry her to assist her in her immigration status.
8In the minutes of the agreement, both parties agreed not to speak to the son about the sexual allegations and that no party should question the child regarding such allegations or to audio or videotape him about such matters.
9Section 68.1(8) of the Act states that: "The Board shall not conduct a review of a complaint if the subject of the complaint (a) is an issue that has been decided by the court or is before the court. The Board concludes that the first two issues were dealt with in Court at the conference of June [...], 2009. The Board therefore has no jurisdiction to review these two issues.
Issue d: That the Society has inaccurately recorded information in the Applicant's file which the Applicant wishes to have corrected.
10In response to this issue, the Society argued that it was explained to the Applicant that she had to address her concerns regarding inaccuracies through the Society's formal complaint mechanism before the Board could hear the complaint. The name of the Society's Director of Communications was provided to her for this purpose. The Applicant argued that she wished to have some information that the Society had inadequately recorded in her file corrected.
11Section 68(5) of the Act states:
"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 procedure: 1. an alleged inaccuracy in the society's files or records regarding the complainant".
12The Board has no authority to hear the Applicant's complaint with regard to inaccuracies in the file at this time. The Applicant must proceed with her complaint to the Society's internal complaint review procedure before the complaint can be heard by the Board. Therefore the Board dismisses issue d.
13The Society did not challenge the Board's jurisdiction with regard to issue c. The Board proceeded to hear the merits of issue c, the remaining complaint. The Board's analysis and conclusions with regard to this issue are outlined in the following paragraphs.
ANALYSIS
Issue c: That the Applicant has not been given an opportunity to be heard by the Society Supervisor, J.R., in that the Applicant left numerous telephone messages and sent e-mails to Mr. J.R. requesting a meeting to discuss her concerns and received no response.
14Although the Applicant submitted her application to the Board on June 26, 2009, the parties consented to adding this complaint to the application at the pre-hearing conducted on September 18, 2009. The Applicant testified that she had not been given an opportunity to be heard by the Society Supervisor, J.R., and that her request for a meeting to discuss her concerns was left unanswered. The Applicant submitted copies of four emails (A2) sent to Mr. J.R.. She did not remember when she first contacted him but believed that it was sometime in July, 2009 and every three weeks after that. She stated that he never returned her messages.
15The Society responded that it had not seen the e-mails submitted by the Applicant and prior to these proceedings had not been provided with any records of telephone calls or of emails sent to Mr. J.R. requesting a meeting. Mr. J.R. further testified that he never received the e-mails submitted by the Applicant because the address on the e-mails was not his. He could not, however, remember his work e-mail address. He specified that, due to the confidentiality status of the e-mails received by the Society, those with incorrect addresses would be destroyed immediately. He was first informed of the concerns of the Applicant in August during a telephone conversation involving the Applicant with regard to other matters. An offer was made to the Applicant sometime in August to meet with another supervisor since Mr. J.R. was unavailable for the month of September due to scheduled holidays. The Applicant declined this offer and a meeting was scheduled with Mr. J.R. for October [...], 2009 after he returned from holidays.
16Mr. J.R. testified that a meeting took place on October [...], 2009 from 9:30 am to 2:00 pm. At the meeting, he explained to the Applicant the process followed when a child sexual abuse allegation is made to the Society Mr. J.R. testified that the purpose of the October [...] meeting was to understand the Applicant's concerns and explanations regarding: the intake process, the protocol the Society has to follow when doing a sexual-abuse investigation, the interviews with the child, that an interview with the child was done at home in order to establish a relationship, the importance not to use a forensic approach in the interview, and the role of the family services department. The standards the Society relies upon were also reviewed with the Applicant and titles of books were recommended to her to assist her in dealing with her situation. Mr. J.R. also testified that at the meeting, they discussed next steps, namely, the Society's ongoing work with the family, monthly visits and private visits with the child. Mr. J.R. further testified that the file was still opened as a protection file since the Applicant believed that it had been closed.
17The Applicant testified that even though the meeting helped her understand the process, she was not satisfied with the conduct of the investigation. She still had a number of questions left unanswered.
18The relevant section of the Act for the Board to consider with regard to issue c is:
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 services they are receiving.
19The Board must determine whether the Society complied with this section of the Act.
20The Applicant added issue c to her complaints at the pre-hearing conducted on September 18, 2008 with the Society's consent. The testimony indicates that the Applicant made a number of attempts to discuss her concerns with Mr. J.R. and because of scheduling conflicts, a meeting could not take place until October [...], 2009 given that the Applicant was unwilling to meet with another supervisor in his absence. The Board believes that the Society did comply with the relevant provisions of the Act. The Board heard that the Mr. J.R. met with the Applicant for several hours in order to hear the concerns that she had regarding how the Society handled its investigation. In addition, the Board heard testimony that indicated that the Society explained its actions to the Applicant in detail and continues to be involved with the Applicant in the interests of her son. The Board recognizes that the Applicant may not have had a clear understanding of the Society's actions at the time the allegations were brought forward. The Board also recognizes that because of her anxieties about her son, she may still not have a clear understanding of the Society's actions despite the Society's efforts to explain them in detail. The Board believes that a written explanation may assist the Applicant in this regard and recommends that the Society consider providing one to her.
21The Board concludes that with regard to issue c, the Applicant was given the opportunity to be heard in response to the allegations made and her concerns about the actions the Society took. The Board therefore dismisses this complaint.
CONCLUSION
22The Board has no jurisdiction to deal with Issues a, b and d and dismisses issue c.
Gail Gonda Presiding Member
Mary Wong Panel Member
Nycole Roy Panel Member
Dated at Toronto, Ontario this 4th day of November, 2009.