N.P. v. Jewish Child and Family Services, 2012 CFSRB 43

CHILD AND FAMILY SERVICES REVIEW BOARD

N.P.

v.

Jewish Child and Family Services

REASONS FOR DECISION

Date: October 11, 2012

Citation: 2012 CFSRB 43

Indexed as: N.P. v. Jewish Child and Family Services

(CFSA s.68)

INTRODUCTION

1N.P. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on March 8, 2012. He is complaining about the Jewish Child and Family Services (the “Society”) pursuant to subsection 68.1(4) 4 and 5 of the Child and Family Services Act (the “Act”).

2The issues addressed at the hearing were whether the Society failed to hear the Applicant when decisions were made or concerns raised and whether it failed to provide him with reasons for decisions involving the investigation of a referral concerning the Applicant’s son which occurred in late 2009.

3The Board conducted a hearing on September 24, 2012. The Board finds that the Society did not meet its obligations to the Applicant regarding the child protection investigation concerning his son.

PRELIMINARY ISSUES

4The Society indicated that it did not wish to participate in the hearing on the merits of this application. The Society stated that it agreed that it did not respond to the Applicant. The Society advised that they subsequently gave him reasons in a letter dated June [ ], 2012 as part of a separate and confidential process to resolve the complaint to the Board. The Society felt that it had given the Applicant full reasons and should the Board order written reasons, it would send out the same reasons. The Board reminded the Society that any discussions or documents related to the Settlement Facilitation process were sealed and could not be considered by the panel for this proceeding. The Society and the Applicant did not come to an agreement during the Settlement Facilitation process and, as a result, the Applicant is entitled to a hearing on the merits of his application. The Board ruled that the hearing on the merits would proceed. The Society left after the Board’s ruling and did not participate in the rest of the hearing.

5The Applicant expressed his dismay that the Society was showing “amazing contempt” for the Board by its refusal to participate in a process mandated by the very legislation that governs it. The Board is also concerned that the Society not only showed disregard for the Board’s process but also for the Applicant who as their client deserves to be treated in a respectful manner and be given a genuine opportunity to be heard in the hearing process as mandated by the Act.

BACKGROUND

6The Society investigated a referral in late 2009 that the Applicant’s former partner (the “mother”) was mistreating the son. The Applicant was not informed about the investigation until it was completed. He raised his concerns to the Child Protection Worker (“CPW”) in a letter and requested contact with her supervisor. The Applicant did not get a response to his letter.

7The Society completed the investigation and closed the file with a caution to the mother. The Applicant was also cautioned to not speak to the son about the mother.

ANALYSIS

8This application relates to the investigation of a referral concerning the Applicant’s son which occurred in late 2009. The main issues for the Board are whether the Society heard the Applicant as required when decisions were made or when he raised service concerns, and whether the Society provided him with reasons (explanations) relating to the decisions made. The Board finds that the Society did not meet its obligations to the Applicant under s. 68.1 (4) 4 and 5 of the Act.

9The Board’s authority and the Society’s obligations are found in the following sections of the Act:

Matters for Board Review

68.1(4) The following matters may be reviewed by the Board under this section:

(4) Allegations that the society has 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.

Duties of Service Providers

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;

10The Applicant received a telephone call from the CPW in late November, early December 2009, regarding a complaint about the mother’s conduct with the son. The CPW had attended at the mother’s residence to interview the son in the presence of the mother. The CPW did not respond when the Applicant asked why he was not advised in advance of the interview. The investigation had been concluded without the Applicant’s knowledge of the referral and without the Applicant being interviewed. According to the Society, during the investigation, the son had revealed that the Applicant had conversations with the son about difficulties with the mother and the CPW cautioned the Applicant. The Applicant denied that he had such a conversation with his son. The Society had never asked him for his side of the story.

11Following this conversation, the Applicant wrote a letter dated December [ ], 2009 to the CPW asking for information about the events that led to the Society’s intervention and the interview with his son. This information had not been disclosed to him during the phone conversation due to the CPW’s expressed concern that it may reveal information about third parties. In the letter, the Applicant expressed his “great” concern that incidents may have occurred which he was unaware of that required the intervention of the Society. He was also concerned that his son was interviewed without his knowledge. He asked for disclosure of this information or that a supervisor contact him regarding this issue.

12The CPW did not disclose the information to the Applicant and her supervisor also did not contact the Applicant. The Applicant wrote a letter dated December [ ], 2009 indicating that he was resending the letter dated December [ ], 2009 which the CPW had lost. He also summarized the conversation with the CPW the previous week, whereby, the CPW revealed that the referral was not anonymous but the person did not want to disclose his identity and that the mother was cautioned after the interview with his son.

13After the letter of December [ ], 2009, the Applicant did not have further contact with the Society until he filed his complaint with the Board.

14The Applicant raised the issue of conflict of interest between the law firm representing the mother and the Society. The Applicant had contacted the mother about the investigation and he received a letter dated December [ ], 2009 in response from the mother’s lawyer, [ ], who is a partner in the law firm of [the Firm]. The mother had been represented by [another Lawyer], a partner in the same law firm, on custody and access issues prior to the investigation. The Applicant later found out that at the time of the investigation [another Lawyer] was President of the Society and that [mother’s Lawyer] was present during the Society’s interview with the son. No one from the Society told the Applicant in advance of the interview with the son. No one from [the Firm] informed him that they were representing the mother during the investigation. The Applicant believed that at the time of the investigation there was a conflict of interest between the parties involved.

15The Applicant raised the issue that the Society did not follow the Child Protection Standards in Ontario, 2007 (“Standards”) when it investigated the referral concerning his son. These standards are the mandatory framework for the delivery of services. Standard #4 for conducting a child protection investigation requires that the Society interview the child’s non-abusing caregiver. The first five steps which include the interview of the non-abusing caregiver are always completed to comply with the Standards. The Society never contacted the Applicant during the course of the investigation and did not interview him. Nor did it respond to his letter of December [ ], 2009 which he sent twice. He was never provided with any documentation that the Society met the minimum standards for the investigation. If it had followed the minimum standards, it would have contacted him.

16The Society’s procedure for review of service complaints as set out on their web site states that the Society encourages their clients and Agency Staff “to work together to come to a mutually satisfactory resolution to any concerns, if you are not happy with the service you are receiving.” Step 1 involves a discussion with the staff member responsible for providing services. Step 2 involves contact with the immediate supervisor who will arrange a meeting within 10 working days. The Applicant discussed his concerns with the CPW and in his letter of December [ ], 2009 requested contact with the worker’s supervisor. The Applicant was not invited for a meeting. There was no communication from the Society to resolve his concerns.

17To be heard means that a person has a chance to tell his side of the story in a respectful context where the Society listens with an open mind. The right to be heard exists for parents and children to permit them meaningful participation in the process, to ensure that their perspective will be considered and taken into consideration when determining next steps. It is to give them an opportunity to have some degree of influence on decisions that affect their interest. This can only be achieved through genuine communication. The Board finds that the Applicant was not heard by the Society during the investigation into the referral concerning his son. The Society concluded their investigation without even notifying the Applicant that they were investigating and did not interview the Applicant to get his input as required under Standard #4 of the Standards. The Society also cautioned the Applicant without speaking to him and getting input from him first. He was not given the opportunity to participate in the process before the Society made its decision about the investigation. Furthermore, when the Applicant wrote a letter on December [ ], 2009 expressing his concerns to the Society and requesting to see a supervisor, there was no response from the Society.

18The Board finds that the Society did not give the Applicant reasons for their investigation. The Applicant in his letter of December [ ], 2009 specifically asked about the events involving his son that warranted the Society’s intervention. The CPW would not divulge this information to him saying that it was confidential and might reveal information about third parties. As a parent, the Applicant is entitled to reasons for the Society’s decisions that affect his interests. The Society made the decision to investigate the referral under the Eligibility Spectrum and the Applicant as legal guardian to his son is entitled to know the reasons why.

19The Board finds that the Society did not give the Applicant reasons for their decision at the conclusion of the investigation. The Applicant was not informed during the investigation as to the steps the Society took to investigate the referral. As a parent, he is entitled to reasons. This means meaningful reasons. This in turn means having enough information to understand what happened and why. Where an investigation is concerned, this would include knowing the steps that the Society took to come to their decision, including who was interviewed, who was present during these interviews, why the Applicant was not interviewed, and the factors taken into account and rationale for the Society’s final decision.

20The Board considered the issue of the Society’s decision about allowing counsel to be present at an interview in the face of an apparent conflict of interest. The Applicant presented evidence that [another Lawyer] was President of the Society at the time the Society investigated the allegations related to the mother. [Another Lawyer] had also been representing the mother as her legal counsel prior to the investigation and her legal partner represented the mother during the investigation and may have been present during the Society’s interview of the son. The Society made the decision to involve the mother’s counsel who had a potential conflict of interest during the investigation and did not inform the Applicant or seek his input or consent. The Society did not make the Applicant aware of its decision; the Applicant found out much later from his son that the mother’s counsel was present during the interview. Since the Applicant was not aware that this was happening, he was not heard or given reasons for the Society’s decision.

CONCLUSION

21The Society did not meet its obligations under s. 68.1 (4) 4 and 5 to the Applicant relating to the investigation in question.

22The Board orders the Society to provide a detailed written explanation to the Applicant, including reference to the Child Protection Standards in Ontario and the Eligibility Spectrum (where applicable), outlining the steps they took in their investigation, specifically:

• details of the reasons why the Society initiated the investigation;
• the steps the Society took to investigate the matter;
• who was present during interviews;
• reasons why the Applicant was cautioned but not interviewed as part of the investigation;
• whether the Society shared information about the investigation with the mother’s counsel;
• the decision reached at the conclusion of the investigation and the evidentiary basis for this decision;
• reasons why the Society involved the mother’s counsel in the investigation with reference to its conflict of interest policy and practice and reasons why the Applicant was not consulted.

23The Society has fifteen days from the date of this decision to comply with this order.

CONFIDENTIALITY ORDER

24Parties 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 must be used only for the purpose of the hearing of this application by the Board.