E.D. v. Catholic Children’s Aid Society of Toronto, 2011 CFSRB 44

Catholic Children’s Aid Society of Toronto

REASONS FOR DECISION

Date: December 7, 2011

Citation: 2011 CFSRB 44

Indexed as: E.D. v. Catholic Children’s Aid Society of Toronto (CFSA s.68)

INTRODUCTION

1On July 12, 2011 E.D. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Catholic Children’s Aid Society of Toronto (the “Society”) pursuant to sections 68 and 68.1 of the Child and Family Services Act (the “Act”). The application was found to be eligible for review on July 18, 2011.

2A Pre-Hearing took place on September 14, 2011, and a hearing into this matter was held [ ] on October 21, 2011.

3The issues in this application are whether the Society heard the Applicant when decisions were made, heard his service concerns and whether they provided him with reasons for decisions that affected his interests relating to his daughter, commencing in April 2011.

4For the reasons that follow, the Board makes findings in favour of the Applicant with regard to providing reasons for its decision not to change the family services worker, with the remaining findings favouring the Society.

BACKGROUND

5The Applicant and his common-law wife, H.S. [“wife”], have an 11 year-old daughter J. [“daughter”]. The Society first became involved with the family in February 2011 when [the daughter] made a disclosure of inappropriate discipline and alcohol use regarding her mother, to her school teacher. During the subsequent Society investigation, [the Applicant] denied the allegation, later explaining that he feared his daughter would be apprehended, and he wanted to keep the family together. Nonetheless, the Society determined that the mother used some physical discipline, but alcohol abuse was not verified. The Applicant and his wife continued to deny any issues when [the daughter] made a second disclosure, approximately one month later.

6Most of the issues in this application arose from events that occurred on April […], 2011, when there was an altercation between [the Applicant] and [the wife], resulting in [the Applicant’s] arrest for assault on April […]. As [the Applicant] was in custody and unable to care for his daughter, he reportedly arranged for his friend, C.N. [“friend”], to take [the daughter] from her mother’s care. This event resulted in kidnapping charges against [the friend] and accessory charges against [the Applicant]. The incident was reported to the Society by the police. As [the daughter] would not return to her mother’s home, both parents agreed that [the daughter] could go to the home of S. [“uncle”] and K.D. [“cousin”], her paternal uncle and cousin respectively, who live next door to her parents’ home.

7The Society worker believed at the time, that [the uncle] and [cousin] would have to sign a kinship agreement, and gave them consent forms to sign. It was later discovered that no such agreement was required, so the Society went no further with the kinship application.

8The family’s file was first assigned to S.B. [“Intake Worker”] with the Society. It was later transferred to ongoing services, and N.M. [“Family Services Worker”] was assigned [ ]. There were two transfer meetings, on May […], 2011 and May […], 2011, when both [the Intake Worker] and [the Family Services Worker] were present, along with the Applicant. A further meeting took place on July […].

9The application was filed on July […], 2011. The Applicant had three additional meetings with the Society post-application. On July […], 2011 he met with [the Family Services Worker] and her supervisor, I.D. [“Family Services Worker Supervisor”]. A follow-up telephone conversation with [the Family Services Worker Supervisor] took place on July […], 2011. The second meeting took place on July […], when the Applicant was given the name of a counsellor, whom he has subsequently seen and is happy with. The third meeting took place on August […], 2011 with [the Family Services Worker Supervisor] and the Manager of Child Protection Services, L.G.. This third meeting was to address the Applicant’s complaints.

10In the Pre-Hearing Report dated September 30, 2011, the Board summarized the Applicant’s concerns into the following issues:

The care of [the daughter] while with her mother, including how investigations into allegations were conducted.
The Applicant’s belief that the family service worker was biased in favour of the mother, based on how she conducted investigations, delay in the provision of his file to him, and otherwise.
The Society’s involvement with the family at the time around the Applicant’s arrest.
The Applicant’s desire to have significant directions to him, or expectations of him, put in writing by the Society.
The provision of kinship-related information and his file to the Applicant.

11That with respect to each complaint listed above, the Society had not listened to his concerns or heard him when decision were made and had not provided the Applicant with reasons for decision that affected his interests.

ANALYSIS

12The Board has considered the following legislative provisions in arriving at its decision:

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,

(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 Board will deal with each of the five specific complaints under the headings set out below.

1. The care of [the daughter] while with her mother, including how investigations into allegations were conducted.

14There were several investigations which the Applicant felt were inadequately done. They included the allegations that [the wife] has a mental health problem as well as alcohol problems, as well as investigations regarding allegations against [the Applicant] such as assault, accessory to kidnapping and parental alienation. The allegations against [the Applicant] are relevant to issue no. 2 in these reasons, his feeling that the Society was biased against him, and are dealt with below.

15The Applicant testified that he raised his concerns regarding [the daughter’s] safety in the care of her mother with both the Intake Worker [ ], and the family services worker, [ ]. He testified that, despite raising this several times with [the Family Services Worker], she did not follow up or make any inquiries of family or friends, who could confirm the details. Rather, he recalls [the Family Services Worker] telling him “I am not here to help you”. [The Applicant] stated that [the Family Services Worker] never had trouble contacting him, and that his calls to [the Family Services Worker] were not returned, or only returned after several days.

16The Applicant’s friend and business partner, [the friend], testified that no Society employees interviewed him, although he was in a good position to observe the family dynamics. Further, he testified that he called [the Intake Worker] on two occasions; April […] when he had [the daughter] in his care, and a follow-up call on April […]. He testified that he left his phone number “on [the Intake Worker’s] voicemail”.

17[The uncle] testified that [the Intake Worker] came to see him once and [the Family Services Worker] came “a couple of times”. They discussed the temporary placement of [the daughter] with [the uncle] and [cousin], and had them sign consents. He was not interviewed about [the wife’s] mental health or alcohol use, but stated that he offered information on the mother/daughter relationship and the mother’s drinking.

18[The Intake Worker] testified that, as an intake worker, she interviewed the parents and child, as well as “collaterals” (i.e. objective people in the child’s life, such as teachers and doctors) regarding the discipline and drinking allegations raised by [the daughter]. She did not recall the Applicant ever asking her to interview anyone. She spoke with [the uncle] and [the cousin] during the kinship process, but they never brought up any concerns about [the daughter’s] mother. [The Intake Worker] concluded from her own observations and information she got from interviews, there was no “evidence” to support the Applicant’s concerns regarding alcohol and mental health. She testified that the charges against [the friend] and the Applicant were criminal matters involving a police investigation, not matters for the Society. [The Intake Worker] denied any knowledge of a call or message from [the friend], and none was recorded in her notes.

19[The Family Services Worker] testified that the Applicant had already raised concerns at the intake level about [the wife] possibly having [a mental health concern] and alcohol abuse. [The Family Services Worker] testified that she believed [the Intake Worker] would have done an investigation and expressed no concerns of her own. Thus, when [the Applicant] raised the concerns with her, she “listened”, but decided from her meetings with [the wife] that there was “not enough evidence” to proceed with an investigation. [The Family Services Worker] further stated that she asked [the wife] at the file transfer meeting to go to [centre] and speak with an assessment counsellor, but decided later not to pursue this request.

20Regarding responding to [the Applicant’s] concerns, [the Family Services Worker] testified that she returned phone calls as soon as she was able, but she had the impression that the Applicant called specifically at times when she would not be in the office. In addition, [the Family Services Worker] noted that the Society’s phone system offers callers the option of pressing zero to speak with someone else, when an employee is not at their desk. She testified that [the Applicant] only used this option on one occasion. She testified that she had great difficulty reaching the Applicant by telephone. Often, there was no one to answer the work number during office hours.

Finding on Issue No. 1

21The question before the Board is whether the Applicant was heard in his concerns that his wife be referred for treatment for drinking and mental health issues, and that his daughter be protected.

22The Board finds that the Society did hear the Applicant’s concerns regarding protection of his daughter. The Society was already aware of both the drinking and discipline allegations from [the daughter’s] disclosure, prior to the Applicant’s raising the concerns. We accept the family service worker’s evidence on phone calls, in that [the Family Services Worker] returned the Applicant’s calls as soon as she could. Her testimony was more detailed than the Applicant’s on this point and was supported by case notes. The Applicant, on the other hand, said generally that “my calls were not returned”. He conceded that he is busy and often out of the office, so there may have been occasions when a call to him was not answered. He also conceded that he may delay in returning a call when the message appeared to be something unimportant.

23We accept [the Intake Worker’s] evidence that the Society explained to [the Applicant] that inappropriate discipline by his wife had been verified. This took place at the May […] and May […], 2011 transfer meetings, in the context of explaining that the file was being transferred from intake to “ongoing services”.

24It is not as clear, however, that the Applicant understood reasons given to him for decisions made, during his various meetings with Society staff. We find the issue in this regard to be one of communication. Irrespective of efforts made to return calls, it appears the Applicant and the worker assigned to him did not really respond to one another. The Board has dealt with this part of the complaint below, under allegations of bias.

25In his application, [the Applicant] also complained that he was not given reasons why the worker on his file was initially changed from [the Intake Worker] to [the Family Services Worker]. The Board finds that the May […] and May […] transfer meetings were specifically designed to explain why the Applicant’s family was getting a new worker. The evidence was that [the Intake Worker] and [the Family Services Worker] from the Society were present at both meetings, when they explained that the file was being transferred from intake to “ongoing services”. This was not pursued by the Applicant at the hearing, in any event.

26The Society met its obligations to hear the Applicant and his service concerns regarding the allegations about his ex-spouse.

2. The Applicant’s belief that the family service worker was biased in favour of the mother, based on how she conducted investigations, delays in the provision of his file to him, and otherwise.

27The Board finds in favour of the Applicant regarding the Society’s response to his concerns about bias, and in favour of the Society regarding its explanation for the delay in providing the Applicant with his file.

28The Applicant gave a number of examples as to why he had the impression that the family services worker was biased in favour of the mother. He believes his concerns were dismissed without investigation, as noted above, but that allegations against him were assumed to be true without investigation. Examples include:

Assumption that he was engaged in parental alienation. The Applicant is frustrated that the Society has come to this conclusion on minimal and conflicting evidence. The Applicant believes that actions he took, such as purchasing a bed and personal items including toothpaste for [the daughter], were on instruction by the Society. Later, however, they were taken by the Society as examples of “parental alienation”. The Applicant has been told by [the daughter] that she does not want to see her mother, and he therefore opposes forcing her to attend supervised access. The Applicant’s view is that [the Family Services Worker] jumped to the conclusion that he was blocking [the daughter’s] access with her mother, when he was in fact supporting [the daughter’s] wishes.
In general, the Applicant feels that [the Family Services Worker’s] method of working with the family has the effect of pitting them one against the other, rather than trying to informally resolve conflict.
The Applicant testified that when he attempted to raise his concerns about bias, [the Family Services Worker] stated that “I am not here to help you”. He feels that on the contrary, she is supposed to help the family stay together.
The Society did not help keep the family together, because it failed to respond to repeated requests for referrals to counsellors. The Applicant testified he eventually got a useful list of referrals at the meeting on July […].
The Applicant’s version of the April […] incident is that he was assaulted. Charges have been laid against him but not proven. The Society did not investigate, but has concluded on the basis of unproven charges that this is a case of woman abuse.
The three-month delay in receiving a copy of his file from the Society is an example of bias, since his wife’s counsel received a copy of her file only three days after requesting it. The Applicant acknowledged that some delay was due to his request for a complete version of the file, with no blacked-out sections, and that it was explained the delay was due to an oversight. The Applicant acknowledged that he has received an apology on this point.

29In reply, the Society put forward the following evidence:

[The Intake Worker] testified that the assault charges would involve a police investigation, rather than a Society one. As a result, no Society investigation was done. The Society did not have protection concerns regarding the Applicant at the time.
[The Family Services Worker] denies having made the comment that “I’m not here to help you”.
[The Family Services Worker] testified that she was under the impression the Applicant was receiving counselling from a Social Worker, J.S. [“Social Worker”], until July […] and that she provided other referrals as soon as she realized this was not the case. The Applicant stated that he was satisfied with the current counselling he is receiving.
[The Family Services Worker] testified that [the Social Worker] raised a concern that “extreme parental alienation” could result if the mother and daughter do not have more contact. [The Family Services Worker] confirmed that [the Social Worker] met only once with each parent and has never met [the daughter].
[The Family Services Worker] testified that [the daughter] “told her” she “wanted” to see her mother. She then recounted her conversation with [the daughter], which is also reflected in her case notes. [The daughter] began the conversation with [the Family Services Worker] by saying she did not want visits with her mother. Later in the conversation, after some insistence, [the daughter] volunteered community locations where visits have been “okay” with her mother.
The fact that [the daughter] spoke disparagingly of her mother was an indication of a rift in their relationship.
[The Family Services Worker Supervisor], [ ] testified that “[the daughter’s] being alienated from her mother was a protection concern”. According to [the Family Services Worker Supervisor], [the Family Services Worker’s] conversation with [the daughter] showed she wanted to see her mother. [The Family Services Worker Supervisor] testified that the July […] meeting was to explain to the Applicant the importance attached by the Society to [the daughter’s] visiting her mother.
The Society gave [the Applicant] until July […], 2011 to agree to supervised access, or child protection proceedings would be commenced against him. [The Family Services Worker Supervisor] and [the Family Services Worker] denied, however, that the Society ever suggested “forced” supervised access.
[The Family Services Worker Supervisor] testified she thought the Applicant wanted to change his family services worker prior to the application being filed with the Board on July 12, 2011. Since he never asked outright, however, she did not follow up.
L.G., the Manager of Child Protection Services, testified that this was a case of “parental alienation and woman abuse”, and the Society felt it was paramount that the woman feel supported. [The wife] felt supported by the family services worker and as a result, [the Applicant’s] request was denied.

Finding on issue no. 2

30The Board’s task is not to determine whether the Society was biased, nor even whether it should have provided a new family services worker when the Applicant requested one. The Board is conscious that it may not have all the information considered by the Society on the issue of parental alienation and woman abuse. However, on the basis of the evidence presented at the Hearing, the panel understands how the Applicant could reasonably interpret the Society’s actions as displaying bias. First, [the daughter’s] stated “desire” to visit her mother appears to have been based on a single conversation. [The daughter] had a cell phone and could phone or text her mother whenever she wanted, but did not. She was also living next door to her mother. Secondly, it appears unlikely [the Social Worker] would have been able to make a finding of “extreme parental alienation” without even meeting the child. Third, the Society decided not to change the worker who the Applicant does not trust, admittedly in order to support the Applicant’s wife.

31The Board’s role, however, is to determine whether the Society heard the Applicant’s concerns about bias. As noted above, the loss of trust between the family services worker and the client makes communication difficult. While [the Applicant] stated he had been expressing frustrations with [the Family Services Worker] for some time prior to filing the Board application, the issue was ignored until August […], 2011.

32It appears from the evidence that the July […] meeting was arranged, not to hear the Applicant’s concerns or explain decisions to him, but in order to give [the Applicant] an ultimatum regarding supervised visits. It does not appear that [the Applicant’s] concerns received any response at that time.

33There is no evidence before the Board that it was ever explained to the Applicant why his request to change the family services worker was denied. L.G. testified there was a meeting on August […], 2011 to consider the Applicant’s complaint and request to change the worker, but she did not give him the reasons for the decision to leave [the Family Services Worker] in place. It is not clear anyone did. As a result, the Board finds in favour of the Applicant and orders the Society to provide an explanation in writing, as to why it decided not to grant [the Applicant’s] request to change his family services worker.

34The Board finds that sufficient explanation was given to [the Applicant] regarding the delay in providing him with a copy of his file. While the explanation was provided after the application was filed with the Board, it appears there was some genuine confusion as to where the file was in the Society’s disclosure process. [The Applicant] received the file as well as an apology. The Board dismisses the Applicant’s complaint on this point.

3. The Society’s involvement with the family at the time around the Applicant’s arrest

35Many of the issues related to the Applicant’s April […] arrest are dealt with elsewhere in these reasons. The Applicant’s belief that the Society took the position that [the daughter] could not go to her mother when he was arrested, for example, is dealt with under “Directives” in Issue 4. Whether [the Intake Worker] received or failed to reply to [the friend’s] phone messages is dealt with under Issue 1. The confusion around the kinship application process, begun on April […], is dealt with under Issue 5.

36The April […] incident occurred over a long weekend. [The Intake Worker] testified that, by the time she got to the office on Tuesday morning, [the daughter] was already with [the uncle] and [cousin]. She testified that she followed-up on the weekend’s events as soon as she was able, which the Board accepts. The Applicant expressed satisfaction with [the Intake Worker’s] involvement with the family.

37[The Applicant] also complains that the Society did not give him reasons for changing the worker from [the Intake Worker], to [The Family Services Worker]. At the hearing, however, he agreed that the reason (i.e. a file transfer from “intake” to “ongoing services”) was explained to him at the transfer meeting. The Board notes that [the Family Services Worker] and [the Intake Worker] felt they did not succeed in getting their point across at the May […], 2011 transfer meeting, and decided to schedule a second transfer meeting, on May […], 2011. The Board is satisfied the Society gave the Applicant reasons for its decision to change workers at that time.

4. The Applicant’s desire to have significant directions to him, or expectations of him, put in writing by the Society

38The Board dismisses this aspect of the complaint because the Applicant did not raise a concern with the Society about wanting written communication until after he filed his complaint.

39The Applicant’s request that “directives” be given to him in writing is a response to his belief that by following the Society’s directions, he now stands accused of alienating his daughter from her mother. By “directives”, the Applicant means instructions or recommendations the Society gives him. He noted as one example, that while in custody, he understood that the Society told the police [the daughter] could not return to her mother’s home. He testified that this prompted him to arrange for [the friend] to take her. The Society denies this version, stating they had no protection concerns related to either parent at the time. Rather, it was [the daughter] who refused to go to her mother’s.

40[The Applicant] cited as another example, the Society’s recommendation that he buy a bed and other necessities such as toothpaste for [the daughter], while with [the uncle] and [cousin]. He believes the Society is now alleging that by “showering her with gifts”, he is alienating [the daughter] from her mother.

41The Society responds that it has never given [the Applicant] any “directives”, and that any advice was clearly communicated orally. [The Intake Worker] testified that no one told [the Applicant] that [the daughter] could not return to her mother’s home, because the Society did not have protection concerns at that time. She also testified that the reasons for transferring the file to “ongoing services”, i.e. that inappropriate discipline had been verified, was explained at the May […] and May […], 2011 transfer meetings. “Next steps” were discussed, but [the Applicant] never requested that those be put in writing.

42R.V., counsel for the Society, suggested that in asking for directives in writing, the Applicant is hoping for a defence against some of the criminal charges he is facing, rather than complaining about directives from the Society as a service issue.

43As noted above, the Board must determine whether the Applicant’s concerns were heard. There was no evidence that the Society was aware of the Applicant’s request that “directives” be in writing until his application was filed on July […]. The Board finds, based on the number of meetings arranged and the Society’s genuine attempts to return telephone messages, the Society was making a significant effort to communicate with the Applicant. There is no requirement in the Child and Family Services Act that a Society always communicate in writing with a client.

44In the Board’s view, the request that “directives” be in writing is an expression of frustration with the communication between the Society and the Applicant. Particularly relevant to this point was the Applicant’s testimony that he does not trust [the Family Services Worker], and her testimony that the Applicant avoids speaking to her directly. This circumstance makes communication, which is essential in Society relationships with its clients, very difficult.

45The Board feels compelled to note that in this case, the Applicant is a paralegal and is comfortable expressing his concerns in writing. In the future, the Applicant may wish to confirm in a letter of his own, what he believes to be an oral direction by the Society.

46[The Intake Worker] testified that she believed kinship forms were necessary when [the daughter] first went to [the uncle] and [cousin’s] home, and therefore had them sign consents. She said that the application went no further, when she realized it was not required when there are no protection concerns with either parent and the parents consent to the caregiver.

47The Applicant acknowledged that he was eventually given a copy of the signed consents. It appears that at the time the application to this Board was filed, he had understood there to be more documents involved. While there appears to have been delay and some internal confusion about which documents were required, which signed, and where they were kept, the Board finds the Society gave the signed kinship consents to the Applicant and explained at the transfer meeting why kinship was not “followed up”.

48The Board dismisses this part of the application.

DECISION

49The Board dismisses those aspects of the Applicant’s complaint relating to:

The care of [the daughter] while with her mother, including how investigations into allegations were conducted.
Delay in the provision of his file to him.
The Society’s involvement with the family at the time around the Applicant’s arrest.
The Applicant’s desire to have significant directions or expectations of him, put in writing by the Society.
The provision of kinship-related information and his file to the Applicant.

50The Board finds that the Society did not meet its obligation to the Applicant relating to:

The provision of reasons relating to its decision not to change workers at the Applicant’s request

ORDER

51Subsection 68.1(4)5 of the Act requires a Society to provide reasons to a complainant for decisions that it makes that affect the complainant’s interests.

52For the reasons listed above, the Board orders that the Society provide detailed written reasons to the Applicant for its decision not to change the family services worker assigned to the Applicant’s file, within 20 days of the issuance of this decision.

53The hearing was conducted in private and was not open to the public. Parties and their representatives must not use, share or disclose any documents or information provided to used in this application with anyone including the media or through the internet.

Heather Gibbs

Presiding Member

Donald Butler

Panel Member

Aida Graff