CHILD AND FAMILY SERVICES REVIEW BOARD
J.S.
v.
Children’s Aid Society of Nipissing and Parry Sound
REASONS FOR DECISION
Date: April 13, 2012
Citation: 2012 CFSRB 13
Indexed as: J.S. v. Children’s Aid Society of Nipissing and Parry Sound
(CFSA s.68)
INTRODUCTION
1On August 5, 2011 J.S. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Children’s Aid Society of Nipissing and Parry Sound (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 under subsections 68.1(4) 4 and 68.1(4) 5 of the Act on August 17, 2011.
2At a pre-hearing on October 14, 2011 the Applicant confirmed that she had five (5) separate complaints. The complaints related to whether the Society heard and/or provided explanations relating to those complaints with respect to services being provided for her son […] year old son, R.G. [the “Child”].
3A hearing into this matter was held on February 24, 2012. The Applicant was self-represented at the hearing. Her parents, C.S. (the “Grandmother”) and D.S. (the “Grandfather”) and her common-law spouse T.L. (the “Step-father”) attended as support persons. Along with these three persons the Applicant’s brother T.S. (the “Brother”) and her daughter from a previous marriage A.W. (the “Daughter”) testified on behalf of the Applicant. The Applicant also testified on her own behalf.
4The Society was represented by legal counsel. The Society’s witnesses were Protection Supervisor S.B., Intake Worker A.L. and Child Protection Worker S.K.
5For the reasons that follow the Board finds that complaint numbered one was not established and the Society did hear the Applicant as required by the Act for the remaining complaints. The Society did not provide reasons for decisions made regarding the Applicant’s fifth complaint which relates to the access visits for her son. The Society met its obligation to provide reasons for the remaining complaints.
BACKGROUND
6The Applicant is the mother of four children. One daughter resides at home with her and her new partner. Two daughters reside together in their own dwelling. The Applicant’s son resides with his biological father S.G. (the “Father”), his step-mother, and two step-siblings.
7On an unspecified date in April, 2009 the Applicant separated from the Father. The Child remained with the Father. Shortly after leaving the marriage she made allegations to the Society against the Father and the Step-mother regarding the parenting of the Child. In May, 2009 she began a common-law living arrangement with a man who would become the Step-father.
8On April […], 2010 a divorce between the Applicant and the Father was finalized. Sole custody of the Child was awarded to the Father and visitation rights were ordered for the Child with the Applicant with pick-up at the Supervised Access Centre as arranged by that centre. The divorce did not improve the strained relationship between the Applicant and the Father. Society employees and the Applicant’s family describe the relationship as continuing to be openly hostile.
9Four (4) Temporary Orders regarding the matter of access visits for the Child with the Applicant and the Step-father were issued by the Court on April […], 2010, May […], 2010, June […], 2010, and August, […], 2010. Three Final Orders regarding numerous matters including access visits were issued by the Court on October […], 2010.
10On April […], 2010 a domestic dispute between the Applicant and the Step-father resulted in physical injury to the Applicant. The dispute, witnessed by the Child, was reported, allegedly by the Father, to the Society. Subsequently, the four (4) Temporary Orders issued by the Court placed restrictions on the Step-father’s presence for access visits by the Child in the Applicant’s home. The Temporary Order of April […], 2010 required the Applicant and the Child to attend counselling at “Changing Patterns”.
11One of the Final Court Orders of October […], 2010 required the completion of an assessment pursuant to section 30 of the Children’s Law Reform Act, 1980 (the “CLRA”). The assessment report was not finalized until September, 2011.
12In April, 2011 the Father pressed harassment charges against the Applicant. With criminal proceedings ongoing as a result of the charges, the Applicant lost her job as a Registered Nurse Practitioner. Due to lack of evidence the Crown Attorney withdrew the charges in early 2012 allowing the Applicant to return to work.
13The open hostility between the Applicant and the Father led the Society to conclude that the Child was suffering from emotional harm. The Society initiated a Child Protection Application in the fall of 2011. A final Supervision Order was issued on October […], 2011.
ANALYSIS
14The Board must determine whether the Society heard the Applicant when she made allegations regarding the Father’s care of the Child and when she raised concerns about the Society’s position and further, whether the Society provided her with reasons for decisions that affected her interests, relating to the following:
The Society’s decision to allege that the Applicant was abusive towards the Child.
The Society’s alleged decision to support the Father in his efforts to alienate the Child from her.
The allegation that the Step-mother inappropriately touches the Child.
The allegation that a wooden spoon was being used to discipline the Child in the Father’s home.
The Child’s court-ordered access visits with the Applicant.
15The Board considered the following legislative provisions in the Act in reaching its decision on the merits of the Application:
68.1(4). 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) 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.
16Throughout the testimony by the Applicant and her witnesses the Board heard evidence that she and her witnesses knew the outcomes of Society’s investigations into many if not all of her concerns. The Applicant and her witnesses were complaining to the Board about those results and expected the Board to rule on those outcomes. The Board repeatedly reinforced the areas where it had jurisdiction and steered the testimony onto subject matter where it had the legislated authority to rule on merits.
Complaint #1. The Society’s decision to allege that she was abusive towards the Child.
17The Applicant believed that the Society, in its dealings with her was alleging she was physically abusive towards her son. During her testimony she provided limited direct evidence to support her claim. The Board received no evidence from her to suggest that she complained to the Society about the allegation. She indicated that her refusal to administer Ritalin to her son in the summer of 2011 may have led the Society to its conclusion.
18The Board must first determine if the Society did in fact make a decision to allege that the Applicant was abusive to the Child.
19The Society’s witnesses dismissed the allegation from the Applicant about the Society alleging physical abuse by the Applicant towards her son. The Protection Supervisor, [ ] stated that the Applicant is not directly physically abusive towards the Child. The Protection Support Worker, [ ] indicated that she had no parenting concerns for the Child with the Applicant.
20However, [the protection supervisor] and Intake Worker [ ] both informed the Board that they were concerned about the emotional abuse suffered by the Child resulting from the open hostility between his biological parents. They believed that the harm was mutually created in that each parent was implying negative attributes about the other to the Child. Their conclusions were made after reports were received from the [another] Children’s Aid Society following an investigation of alleged abuse it had received from the Applicant’s daughter and after interviewing several adults closely linked to the two families including the Applicant’s parents.
21This allegation of emotional abuse was the subject matter of the Society’s protection proceeding before the Court that led to the order made on October […], 2011. The emotional abuse was alleged in the context of the high conflict relationship between the Applicant and the Father.
22The Applicant testified that she was cognizant of and accepting of her role in creating the potential for emotional abuse for the Child. She did not state that she complained to the Society about the allegation that led to the court proceedings.
23The Society did not allege physical abuse of the Child by the Applicant. The Society and the Applicant both agree the she has some responsibility for the emotional harm suffered by the Child. Having no evidence to indicate that a decision was made by the Society to allege physical abuse or that the Applicant complained to the Society about its allegations of emotional abuse, the Board dismisses this complaint.
Complaint #2. The Society’s alleged decision to support the Father in his efforts to alienate the Child from her.
24The Applicant complained that her former partner, the Father, was deliberately trying to alienate the Child from her and that the Society was supporting him in those efforts. She cited many examples of his efforts including, but not limited to the following: the Father’s refusal to cooperate in allowing the Child to have telephone access to her and the Society allegedly not willing to resolve the issue, the Father attempting to prevent access visits for the Child in her home following the domestic dispute of April, 2010, by appearing in Court three times to have the Temporary Orders adjusted, and the Society not supporting her when she raised concerns about the Father ensuring she was denied entry into her son’s school.
25Following the domestic dispute in the Applicant’s home the Father appeared in Court on April […], May […], and June […], 2010 to convince the Court to apply tighter and tighter restrictions for access visits when the Step-father was in and/or on the premises where the Applicant resided. He was successful with his request and the Applicant alleged that the “week about” access visits were difficult to maintain under these restrictions. She testified that the Society was not helping the Child maintain meaningful contact with her and his biological siblings.
26The Society employees testified that it (the Society) was not supporting the Father; that in fact it was treating both biological parents equally, bearing in mind that its client was the Child and his best interests were its paramount consideration. The Society workers further stated that they presented her requests for altered access to the Father. When the parents could not agree on any particular course of action regarding the Child, its role was not to mediate a solution but it was legally bound to follow the wishes of the parent that had care and custody as per the initial Court Order of April […], 2010. Furthermore, it was also legally required to abide by all changes to the terms of any new Temporary Court Orders. The Society also indicated that as the Father had care and custody of the Child, he could control all decisions made regarding the Child’s schooling including preventing the Applicant from visiting the Child at school.
27Intake Worker [ ] testified that there were at least 50 e-mail messages and/or telephone conversations about this matter. No dates or specifics were provided. She did state that all complaints were dealt with and responses were given to the Applicant. She further testified that she had repeatedly explained to the Applicant that the Society was not showing favouritism in supporting the Father. All of its decisions and actions were based solely on one single principle – the best interests of the Child.
28Neither Party adduced any evidence to indicate that the Father was directly alienating the Child from the Applicant. All of the evidence was related to issues of the Father’s alleged efforts to restrict the Child’s access to the Applicant. The evidence about the decisions made and services provided by the Society in this regard, do not support the Applicant’s complaint, but rather, the Society’s position.
29For example, the Society relayed requests regarding access from the Applicant to the Father who had care and custody of the Child which support the Society’s position that they heard her concerns. The various Court Orders defined access visits and the Society could not mediate changes to these orders as requested by the Applicant unless the Father agreed. Furthermore, the Society was doing its legal duty in ensuring the terms of all Court Orders were implemented. As well, the Applicant indicated that she had been given verbal reasons for denials of requested changes in access. The Society also testified that it had informed her on numerous occasions that it was always acting in the best interests of the Child; that it was not in any way supporting the Father in his efforts to alienate the Child from her. Based on the evidence before it the Board finds that her concerns regarding this complaint were heard and reasons for decisions provided to her. The Board dismisses this complaint.
Complaint #3. Allegations about the Step-mother inappropriately touching the Child.
30The Applicant had many concerns regarding the care provided for the Child in the home of the Father. During another access visit during the fall of 2010 the Applicant took the Child to the emergency room at [hospital]. He was suffering from a prolapsed rectum. The Applicant was concerned about the cause of the prolapse. In December, 2010 [a doctor] verified the Child had suffered a prolapse of the rectum in October, 2010 due to constipation, not sexual abuse.
31On October […], 2010 immediately following his arrival at the Applicant’s home for a scheduled access visit the Child had to be taken to the emergency department at [hospital] for swelling and restricted blood flow following from a complete pulling back of the foreskin on his penis. He was treated by [another doctor] and advised to return the following day if the condition did not improve. It did not and while under sedation the foreskin was returned to its normal location. The Child indicated to the Applicant and in her presence to the Doctor that the Step-mother was responsible for the [medical condition].
32The Society received a telephone call from one of the Doctors about the injury having been caused allegedly by the Step-mother. The Applicant testified that she spoke with Protection Supervisor [ ] about the matter. The Applicant said she received little response from [the protection supervisor]. The Applicant also testified that she reported the incident to the [police].
33The Applicant alleges she was not provided with reasons for the Society deciding that there was not a child protection concern regarding allegations of inappropriate touching of the Child by the Step-mother.
34Child Protection Worker [ ] testified that the Society received a telephone call from one of the Doctors about the injured penis having been caused by the Step-mother. [The child protection worker] stated that she investigated the Child’s allegations about the actions of the Step-mother. The Step-mother denied any responsibility for the injured penis. [The child protection worker] also testified that the Father informed her that the Step-mother does not participate in bathing the Child or assisting with the Child’s penis hygiene. [The child protection worker] also indicated to the Board that she spoke with the Child about the incident. She testified that the Child told her that he did the damage himself. The Applicant informed the Board that the Child often holds back information from people with whom he is not completely comfortable; that she would have expected him to take the simplest path which was to state that he caused the injury.
35[The child protection worker] testified that she could not verify that the Step-mother touched the Child and was thus responsible for the injured penis. The Child told the Doctor, in the presence of his mother, one version. When his mother was not present he told his Society worker, someone he was at least partially familiar with, a different version. [The child protection worker] also stated that she informed the Applicant of her findings and her belief that the Child was not at risk in the Father’s home. [The child protection worker] further stated that the Applicant was upset at the outcome of the investigation as she, the Applicant, believed the Child was being abused in the Father’s home.
36The Board finds that the Society did hear the Applicant’s concerns about alleged inappropriate touching of the Child by the Step-mother. The Society investigated and reached a conclusion which it shared with the Applicant. The Applicant did not like the results of the investigation; however, this is not the same as not being heard or provided with reasons. The Board dismisses this complaint.
Complaint #4. Allegations that a wooden spoon was being used to discipline the Child in the Father’s home.
37This complaint follows a similar pattern to complaint #3. In September, 2011 the Applicant observed a series of bruises on the Child’s back. She testified that the Child told her that the Step-mother had hit him with a wooden spoon.
38The Society informed the Board that it and the police conducted separate investigations into the allegation. [The child protection worker] testified that, when questioned about the bruises, the Child recanted his original accusation. She also indicated that the police did not find enough evidence to lay criminal charges against the Step-mother. [The child protection worker] stated that she informed the Applicant of her findings in this investigation that the cause of the bruising could not be attributed to any individual. Neither Party stated to what the Society attributed the bruising. The Applicant testified that she continued to complain about bruising and inappropriate discipline and was told by Society workers that there were no protection concerns for the Child while he resides in the Father’s home.
39The question again before the Board is not one of alleged actions and/or outcomes but of process. Did the Society hear the Applicant’s concerns that a wooden spoon was being used for discipline by the Step-mother and take any meaningful steps to address them? The Board finds that yes, she was heard. After she raised the concern an investigation was conducted and a conclusion reached. Was the Applicant given reasons for Society’s decision not to pursue the matter? Yes she was as the results of the Society’s investigation were shared with her and she was told that the home was safe for her son. The Applicant disagrees with the results of the investigation, however, the question for the Board is whether the Society heard her and provided her with reasons for its conclusion that there were no protection concerns. For these reasons the Board dismisses this complaint.
Complaint #5. The Child’s court-ordered access visits with the Applicant.
40Access visits are at the heart of this application. The Applicant believes that the Society did not hear her or provide her with reasons when scheduling access visits under the court order. The Applicant believes that if she had care and custody of the Child none of the concerns she raised with the Society would exist. The Court ruled otherwise and she must abide by its decisions regarding access visits.
41Scheduling access visit has been an ongoing battle for the Applicant since the divorce of April […], 2010. There are rules for access visits contained in seven separate Care and Custody Orders made under the CLRA. There are rules to obey for access visits from the two orders contained in the Child Protection Orders made under the CFSA.
42There are too many variations in access visit arrangements to list all of them in detail. Among numerous alternatives there have been times when the Child rotated from the Applicant’s home to the Father’s home on a weekly basis. There have been times when visits were held during the day, for a two day period, usually Friday-Saturday, and for a full weekend. School holidays and vacations for the biological parents further complicated considerations for scheduling the visits.
43Access visits are further complicated by what both parties identified as the “transition” – the time and the location for either the drop-off or pick-up. These have varied from before school, after school, at the police station, at the Society offices, at the home of the paternal grandparents or at the Child’s school which is located in [city], Ontario approximately 30-35 kilometres from the Applicant’s home in [city].
44The Applicant testified that she has often requested increased access. These requests usually are declined on the grounds that the Court Orders do not allow them or the Father does not agree with them, in which case, as indicated during testimony, the Society must abide by his wishes as he has care and custody of the Child.
45Evidence adduced at the hearing did not specify precisely when or in what capacity the Society was originally involved in the access visits. Testimony indicated that the Society was involved from at least the spring of 2011. Regular communication about access visits between the Applicant and [ ] [the child protection worker] continued from that time through to the date of the hearing.
46The Child Protection Orders of September […] and October […], 2011 allow the Child access visits as arranged by the Society and in the Child’s best interests. The Applicant testified that these best interests were not relayed to her or were determined without reasons. She cited an example where the Society wanted to transition at the school for both ends of weekend visits as the Child transitioned better at school. The Applicant argued that that may have been true for drop-off on Monday mornings but the Society had no proof it was better for pick-up. She also alleged that often changes were requested by the Society with little time for her to provide input or make necessary arrangements and with ultimatums that if she was not able to adjust her schedule for the pick-up, the visit would be cancelled.
47The Society argued that the Applicant was responsible for losing access visits. She alleged that a Society worker informed her she had the right to administer medication to her son when she was his guardian during access visits. She believed this gave her the right to withhold medications prescribed by a doctor. Adderol (“Ritalin”) had been prescribed to control the Child’s Attention Deficit Hyperactivity Disorder (ADHD). The Applicant is a Registered Nurse Practitioner (a “RPN”) and believed the use of this drug was not appropriate for a 6-year old child. In July, 2011 she refused to administer this medication during an access visit. Subsequently, she received a letter from the Father’s lawyer via her lawyer indicating that visits would be cancelled unless she agreed to give the Child the Ritalin. As a result one access visit was lost. This matter was eventually settled in domestic Court where a stipulation regarding medications was added to the court orders.
48The Applicant also lost a weekend visit in January, 2012 because she would not drive to [city] to the Child’s school for a pick-up without an adult passenger accompanying her. She alleged that no-one was available to accompany her, she refused to make the trip and the visit was cancelled. The Society‘s testimony indicated that it had sent her an e-mail prior to the designated pick-up date that stipulated that unless she could make the necessary arrangements the access would be denied for that weekend so she was well aware of the consequences of not driving to the school for the transition.
49The Society knew the difficulties under which the Applicant was struggling to maintain the access visits. She had re-gained her job and was working long hours to make up for the long period during which she had no income. The Society knew why she would not drive to [city] unaccompanied. Yet, with no reasons being provided the Society wanted her to do pick-ups in [city] at the Child’s school at 3:00 pm on Friday afternoons.
50The Society provided evidence that it was listening to her complaints about access visits. It tried various schedules to accommodate the Applicant, but indicated that she was resistant to change. The Society also stated that the Applicant could not commit to access every weekend. Furthermore, to accommodate her fear of driving to [city] where the father resided, the Society offered to have a worker present at the school during the transition. This offer was rejected by the Applicant.
51The Court Orders from the fall of 2011 permitted access visits for the Child as arranged by the Society. Given the Society’s knowledge of the Applicant’s situation and the importance to her of the access visits, the Society could have chosen a better method for implementing its changes to the access, including providing reasons for those changes. The Board finds that prior to the hearing the Society was listening to her complaints about access but it failed to comply with section 68.1(4)5 of the Act in that if failed to provide her with reasons for decisions it made in that regard and those decisions affected her interests.
52In the Board’s opinion at the hearing the Society fully explained its position regarding its obligation to abide by the court orders and the Father’s wishes vis-à-vis access visits. As well, the Board concludes that the large number of e-mails and reported telephone calls between the Applicant and the Society indicated that she was being heard, but not always receiving favourable responses. Furthermore, the Board also finds that during the hearing the Society thoroughly explained its reasons for adjusting the access schedules over the several months prior to the date of the hearing.
DECISION
53The Board dismisses complaint numbered one (alleged abuse by the Applicant). The Board finds that with regards to the second to fourth of the Applicant’s complaints
(Society supporting Child’s alienation, inappropriate touching by Step-mother, and bruising) the Society heard her concerns and provided her with complete explanations for its decisions.
54For the fifth complaint the Board finds that until the hearing the Applicant had not received reasons for decisions made by the Society regarding access visits. The hearing provided her with a forum to air all of her concerns and to receive explanations for Society’s actions and decisions regarding access visits. The Board finds that she has now received adequate explanations and reasons for Society’s decisions regarding access. The Board encourages the Society to hold meaningful and timely discussions with the Applicant before any future decisions to adjust access visits are made and to provide her with reasons for the proposed adjustment. Otherwise, the Board makes no order on this complaint.
55During the hearing the Applicant indicated that other than contacting the Board she was not aware of alternate complaint mechanisms available to her. The Society witnesses testified that its protocol required that she receive a package of information about complaints and the Internal Complaint Review Panel early in its involvement with her. None of the witnesses could verify that this occurred. The Board recommends that the Society respond to the complainant by providing this information to her as soon as possible. The Board also recommends that the Society review its processes to ensure that the protocol for providing information about complaint mechanisms is being complied with.
ORDER
56The 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 or used in this application with anyone including the media or on-line. Any documents or information shared by the parties and the Board must be used only for the purposes of the hearing of this application.
Richard Linley ________________________________
Richard Linley
Presiding Member
Heather Hunter
Heather Hunter
Panel Member
John Gates
John Gates
Panel Member
Dated at Toronto, Ontario on this 13th day of April, 2012.