CHILD AND FAMILY SERVICES REVIEW BOARD
M.D.
v.
Windsor- Essex Children’s Aid Society
REASONS FOR DECISION
Date: April 19, 2012
Citation: 2012 CFSRB 15
Indexed as: M.D. v. Windsor- Essex Children’s Aid Society
(CFSA s.68)
1M.D. (the “Applicant”) filed an application on August 17, 2011 with the Child and Family Services Review Board (“the Board”) complaining about the Windsor-Essex Children’s Aid Society (the “Society”). The application was found to be eligible for review under s.68.1(4) 4 and 68.1(4) 5 of the Child and Family Services Act (the “Act”) on August 24, 2011.
2The Applicant alleged that the Society failed to hear his concerns about the lack of service to both himself and his sons; failed to give him the opportunity to be heard in making its decision regarding the placement of his sons, failed to hear his concerns related to the apprehension of his sons and to provide him with reasons why his sons were not placed in his care; and failed to hear his concerns regarding the withholding of information related to instances of alleged neglect and abuse of his sons by his ex-spouse. A hearing on the merits was scheduled on October 12, 2011 and was adjourned at the request of the parties in order to seek a resolution. A hearing on the merits was held on January 16, 2012 and March 6, 2012.
3The Board finds in the Applicant’s favour with regard to one of the issues under complaint and dismisses the Applicant’s other complaints for the reasons that follow.
BACKGROUND
4The Applicant is the father of two boys, H., born July […], 2001 and J., born September [ …], 2003. The Applicant’s complaint to the Board relates to the period of time prior to a protection application made by the Society and court proceedings beginning on February […] 2009. The Society was advised on February […], 2009, that the Applicant’s ex-spouse was to be arrested the following day on several charges. As a result, the Society apprehended the Applicant’s sons as well as two other children who were in the custody and care of the Applicant’s ex-spouse on February […], 2009.
5The Society believed that the Applicant’s ex-spouse had an existing custody order and upon her arrest, the children were in need of protection. On February […], 2009, the Society met with the Applicant and his legal counsel at that time in order to discuss options for the placement of the Applicant’s two sons, including an arrangement to place them in the Applicant’s care under terms of supervision. The Applicant and his counsel left the meeting and did not return. The meeting was terminated without a resolution regarding the placement of the Applicant’s sons in his care.
PRELIMINARY ISSUE
6The Society argued that the Board did not have jurisdiction to hear the issues related to the apprehension and custody of the Applicant’s sons on the grounds that the matter had been placed before the court on February […], 2009 following the apprehension of the children on February […], 2009 and was still before the court. The Society conceded that the Applicant had a right to be heard regarding the decisions of the Society prior to the court proceedings but not after that date.
7Counsel for the Applicant submitted that the Society had prior knowledge that the Applicant’s ex-spouse was to be arrested but failed to notify the Applicant and place his sons in his care at the time of the arrest. Counsel argued that the Applicant had the right to know of the Society’s plans and to expect that the Society would involve him as had been done in the past when the Applicant’s ex-spouse was not available to care for the children.
8The Board ruled that it would hear the complaints related to the Applicant’s concerns about lack of service to both himself and his sons and his concerns regarding the withholding of information related to instances of alleged neglect and abuse of his sons by his ex-spouse since these were not being contested by the Society. However, the Board would hear the complaints related to the apprehension of the Applicant’s sons only as they relate to the decisions of the Society prior to the court proceedings initiated on February […], 2009.
ANALYSIS
9The Board must determine whether the Society heard the Applicant and gave him reasons for its decisions.
10The Board concluded that the Society did not comply with sections 68.1(4) 4 and 5 with respect to its decision regarding a safety plan for the Applicant’s sons. The Board dismissed the other complaints for the reasons that follow.
11The 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); 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.
(5) Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
12First the Board will deal with allegations regarding the Applicant’s concerns about lack of service to his sons and concerns regarding the withholding of information related to instances of alleged neglect and abuse of his sons by his ex-spouse. The Board will then deal with the allegations related to the apprehension of the Applicant’s sons in a separate section.
Allegations that the Society failed to hear the Applicant’s concerns about lack of service to both himself and his sons and concerns regarding the withholding of information related to instances of alleged neglect and abuse of his sons by his ex-spouse.
13The Applicant gave testimony about a number of incidents in 2007 and 2008 when he reported concerns about possible neglect and abuse of his two sons while in the care of their mother. These incidents included observations of bruises on his sons, reports that their mother yelled at them and had grabbed one of his sons around the neck, had placed a pillow over one son’s face in another incident, and had locked his sons in their room.
14The Applicant’s testimony regarding the particular details of these incidents was incomplete. During direct examination by his counsel, the Applicant could not recall in detail and in all instances what he reported to whom and whether he received a response from the Society and what the specific response he received from the Society had been. Counsel for the Applicant suggested that the Applicant had a problem remembering dates but that he was certain that he had raised a number of concerns with a family services supervisor as soon as he learned about them through his interactions with his sons. The Applicant was also certain that he got no response from the Society regarding the actions that they took in response to the concerns he raised.
The Applicant also testified that he only became aware of some of the information the Society had regarding the care of his sons as a result of the disclosures through the court proceedings.
15The Applicant submitted into evidence a letter dated November […], 2011 to his counsel from the Society’s Chief Operating Officer. This letter details nine referrals made to the Society in 2007 and 2008 regarding incidents involving the Applicant’s ex-spouse and his sons. Most of these referrals were made by the Applicant or, if not, discussed with the Applicant. In most instances, the Society notes that it either discussed the outcome of its investigations and/or explained Society policy in instances where the Applicant was persistent in stating that the children should be removed from their mother’s care. In those instances where the referral was from someone other than the Applicant, and where the allegations could not be verified or there were no protection concerns, the Society noted that it did not contact the Applicant. The Society noted in those instances in which the Applicant was notified of an outcome that the Applicant was not in agreement with the Society’outcomes or was not open to receiving the information regarding the outcome.
16A family services supervisor testified that she had had responsibility for supervising workers and the Applicant’s file since January 2007. She stated that there had been a long history of conflict between the Applicant and his ex-spouse and that the Society had received many complaints from the Applicant regarding the care of the Applicant’s children while in their mother’s care.
17During the period of time referenced by the Applicant in his testimony, the Society had conducted several investigations in response to concerns raised by the Applicant. The supervisor acknowleded that in one instance the Society had not informed the Applicant of the outcome and that was an oversight. However, in other instances the Society had informed him of their outcome either orally or in writing and the Applicant was not satisfied with the Society’s response. This witness’ testimony was consistent with the information provided in the letter dated November […], 2011 to the Applicant that was referenced earlier in this decision. In the view of this witness, the Applicant wanted his sons with him from the beginning of the Society’s involvement with him.
18The supervisor also asserted that the relationships between workers and the Applicant were not positive and that the Society made efforts to address this by changing workers in an attempt to re-engage in a more positive way. The Applicant informed the Society in the late summer/early fall of 2008 that he was not to be contacted by the new worker but rather she should contact the Applicant’s lawyer.
19The supervisor described a domestic situation that had been and continued to be highly conflictual. The Society had concerns about the exposure the Applicant’s sons had to this conflict as well as the exposure to negative comments each of the parents was making about the other parent and possible coaching of the children by each of the parents.
20The supervisor described actions taken by the Society to ensure the Applicant that his sons were safe without sharing information with him that was either confidential or information that might increase the conflict between the parents and/or pose a risk to the children by inflaming the conflict. The Society also underscored the wording of section 2(2) (a) of the Act and suggested that it had made judgments in some instances that it was not appropirate to inform or discuss with the Applicant decisions it made regarding referrals that were made by others or were not considered to be protection concerns and where no investigations may have taken place.
21The Board believes that the Applicant had concerns which he did express to the Society. At the same time, the testimony provided by the Society and the letter dated November […], 2011 submitted by the Applicant, suggest that the Society heard these concerns and investigated them. The Society acknowledged in the letter dated November […], 2011, that it did not communicate with the Applicant in one instance where it should have regarding a concern raised by the school and not the Applicant. The Society acknowledged that this was an oversight. In another incident, a referral was made by someone other than the Applicant and the Society acknowledged that it did not obtain the Applicant’s view on the matter and should have. In two other instances, the Society noted that it was unable to produce a record to establish that the workers involved had orally communicated its findings with the Applicant, but concluded that it was likely that the workers had done so given the ongoing contact with the Applicant during this period. In the other instances, the Society communicated the outcome of its investigations regarding his concerns to the Applicant orally or in writing and noted that the Applicant was not satisfied with the Society’s response. The Society also explained that it did not share all of the information that it had with the Applicant in order to reduce the likelihood of increasing the existing conflict and acrimony between the Applicant and his ex-spouse and by so doing ensure that the Applicant’s sons were not exposed to greater risks than they already faced in light of their parents’ relationship.
22The Board concludes that the Society did hear the the concerns the Applicant raised about the possible abuse of his sons in the care of their mother. The Board also concludes that the Society communicated the results of its investigations into his concerns to the Applicant. It acknowledged that in one instance it did not communicate its findings about a concern raised by the school with him and should have. In addition, the letter dated November […], 2011 provides information about a concern raised by another party which was verified and the Society failed to obtain the Applicant’s view on the matter. However, neither the Applicant nor the Society provided direct testimony regarding these two incidents that the Board could rely upon to draw conclusions. Therefore, the Board dismisses this complaint.
Allegations that the Society failed to give the Applicant the opportunity to be heard in making its decision regarding the placement of his sons; failed to hear the Applicant’s concerns related to the apprehension of his sons and failed to provide him with reasons why his sons were not placed in his care.
23The Applicant expressed the view that the Society should have contacted him to pick up his sons from school as soon as they knew that their mother was to be arrested. He had cared for his sons in the past when there was a fire at their mother’s home and also when their mother was out of town for as long as a month. The Applicant submitted into evidence a case note dated February […], 2009 made at 12:18 pm to indicate that the call from the police to the Society was made the day before the apprehension and not the morning of the apprehension.
24The Applicant also submitted into evidence a case note dated February […], 2009 documenting an incident that occurred at the Applicant’s home on that date. The Applicant had not returned his sons to their mother after a regularly scheduled weekend visit and had not taken the boys to school. The Society worker attended the Applicant’s home with the police in order to take the boys to school and comply with the existing court order to return the children to their mother. The Applicant stressed that the worker noted in the case note that the children stated that they wanted to live with their dad and did not want their mother to pick them up from school that day. Two days later, on February […], 2009, the Applicant’s ex-spouse was arrested and the children were apprehended.
25The Applicant stated that the Society arranged a meeting with him on February […], 2009, a day after the apprehension of his sons. He stated that the Society informed him that one option it was considering was to place his sons with him under a supervision order. He testified that he was informed that the reason for the supervision order was that the apartment he lived in at the time was too small. This reason is also documented in a safety assessement report completed by the Society dated February […], 2009 and submitted into evidence by the Applicant. In the view of the Applicant, this reason did not make sense since he had access to his sons on the weekend without supervision and the Society did not require a supervision order in the past when he had sole care of his sons and he lived in the same apartment. The Applicant acknowledged that he walked out of the meeting but that the family service supervisor also walked out of the meeting.
26The family service supervisor stated that the police had contacted them one week in advance of the arrest of the Applicant’s ex-spouse and informed the Society that they were planning an arrest in a situation where children were involved. At that time, the police did not provide a name or address of the person they were planning to arrest. She further stated that the morning of the planned arrest, the police contacted the Society and gave them the name of the mother of the Applicant’s sons. As a result, the children were apprehended and placed in a foster home. This witness stated that the Society needed time to assess the suitability and availability of the Applicant as a possible placement option for the children. She did not explain the discrepancy in the timing of the phone call from the police as documented in the case note dated February […], 2009 referenced earlier in this decision.
27The supervisor stated that the meeting on February […], 2009 was held in order to discuss with the Applicant the Society’s position regarding placement of his sons in his care. She explained that they had only a brief dialogue and that the Applicant and his counsel left the meeting before the discussion could be completed and did not return. She stated that the supervision order was thought to be necessary because of the fractured relationship the Society had with the Applicant and also because of the conflict between the Applicant and his ex-spouse and a concern about derogatory comments made by the Applicant about his ex-spouse in front of the children and possible coaching of the children. These reasons were not documented in the safety assessement report dated February […], 2009 that was submitted by the Applicant.
28The meeting on February […], 2009 was called by the Society in order to discuss the option of placing the Applicant’s sons in his care. The meeting was not concluded because the Applicant left and, according to the Applicant’s own testimony, he had no further meetings or discussions with the Society regarding the matter before the court proceedings that began on February […], 2009.
29The Board heard that the Society made a decision on or before February […], 2009, to apprehend the Applicant’s sons. Section 68.1(4) of the Act gives the Board the authority to hear allegations that the Society failed to comply with clause 2(2)(a), namely, 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. The placement of the Applicant’s sons was a decision made by the Society that clearly affected the Applicant’s interests.
30The Applicant had had regular access to his sons in the past and had been the sole caretaker during times when his ex-spouse was not available or unable to care for the children. The decision to place the children in foster care was a significant decision affecting the Applicant’s interest, perhaps, one of the most important kinds of decisions that a society can make. The children had always been in the care of either their mother and/or their father. It is reasonable to expect that the Society would have made every attempt to contact and engage the Applicant before it made its decision to apprehend the children rather than after doing so. The Society did not give the Applicant the opportunity to present his view regarding a safety plan for the children before it made its decision. It did schedule a meeting to engage him in a discussion regarding placement on the following day. This discussion could have happened on February […] or […], 2009 before the decision was made.
31The Act’s wording strongly suggests that the right to be heard is meant to occur at the time decisions are being considered and not after they have been made as in the present case. The Child Protection Standards in Ontario (“Standards”) (mandatory to all societies) state:
The safety plan is developed with the family immediately following the assessment of safety threats, and is documented on the next working day. The safety plan must secure the safety of the referred child and any other children being cared for in the home. (Standard #5. Conducting the Safety Assessment and Developing the Safety Plan: Collaborating with the Family. Child Protection Standards in Ontario, 2007).
32The case note dated February […], 2009 indicates that the Society knew on that date that the Applicant’s sons were to be without the care of their mother as of February […], 2009 and was aware that this constituted a safety threat to the children. The Standards require the Society to develop a safety plan with the family immediately following such an assessment and to document a plan on the next working day.
33The Board concludes that the Society did not comply with the Standards. The failure to meet mandatory minimum expectations that require a timely consultative plan is indicative of not hearing the Applicant. The Society did not comply with section 68.1(4) 4 of the Act regarding the Applicant’s complaint about not being given an opportunity to be heard at the time it was making a decision that affected his interests and his sons’ interests. Furthermore, the Society did not give the Applicant reasons for their decision to not inform and involve him as required by the Standards before apprehendning and placing the children in foster care in accordance with section 68.1(4) 5 of the Act.
34The Board did not hear evidence to support the claim that the Applicant made his concerns known to the Society regarding either the failure to place his sons in his care or to give him reasons for its actions in apprehending his sons. The Board heard from both the Society and the Applicant that a meeting was held the day after the apprehension of the children. This meeting was held at the Society’s request for the purposes of discussing with the Applicant an option it was considering regarding placement of his sons in his care. The Applicant did not state that he expressed his concerns to the Society at that meeting regarding not placing the boys immediately in his care nor did the Applicant state that he expressed his concerns to the Society about the proposed supervision order. The Applicant did state that the only reason given regarding the need for the supervison order was related to the size of his home.
35The Board recognizes that the Applicant believed that his sons should have been placed in his care immediately upon the arrest of their mother and that no supervision order should have been required given that it had not been required in the past. The Board does not have a mandate to determine whether the Society made the correct decision regarding the placement of his sons nor whether it did so for the right reasons. The Board has to determine whether the Society gave the Applicant the opportunity to be heard when he expressed concerns about its decision to apprehend the Applicant’s sons on February […], 2009 and gave him reasons why they were not placed in his care.
36There was no evidence that the Applicant raised service concerns about the decisions made, at the meeting, which was an opportunity for him to do so. Further,
the evidence was that the Applicant disengaged from the process put in place that would have given him a forum for his concerns and for further input into decision making. Therefore these complaints are dismissed.
CONCLUSION
37In summary, the Board concludes that the Society did not comply with sections 68.1(4) 4 and 5 with respect to its decision regarding a safety plan for the Applicant’s sons before they were apprehended. The Board orders the Society to provide detailed written reasons to the Applicant explaining why it did not involve him in the development of a safety plan for his sons before they were apprehended. These written reasons are to be provided to the Applicant within 15 days of the receipt of this decision. The Board dismisses the other complaints.
Ruth Ann Schedlich _____________________ Ruth Ann Schedlich Presiding Member
Mary Wong _____________________ Mary Wong Board Member
Gail Gonda _____________________ . Gail Gonda Board Member
Dated in Toronto, Ontario on the 19^th^ day of April 2012.