D.S. v. Children’s Aid Society of London and Middlesex, 2012 CFSRB 7

CHILD AND FAMILY SERVICES REVIEW BOARD

D.S.

v.

Children’s Aid Society of London and Middlesex

REASONS FOR DECISION

Date: February 7, 2012

Citation: 2012 CFSRB 7

Indexed as: D.S. v. Children’s Aid Society of London and Middlesex (CFSA s.68)

REASONS FOR DECISION

INTRODUCTION

1On May 28, 2010, D.S. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Children’s Aid Society of London & Middlesex (the “Society”) pursuant to section 68.1 of the Child and Family Services Act (the “Act”). The application was found to be eligible for review under sections 68.1(4)(4) and 68.1(4)(5) of the Act on June 2, 2010.

2The Applicant has three complaints that relate to the Society not providing him with the opportunity to be heard and not providing him with reasons regarding a Society decision that affected his interests. The three complaints relate to:

1. his access visitation with the children,
2. his concerns regarding comments he heard made by the Society worker to the Applicant’s spouse regarding the children being returned to the mother’s care, and
3. his request for a new Society worker.

3The Society submitted that the Board does not have jurisdiction to hear the application under sections 68.1(4)(4) and 68.1(4)(5) of the Act. The Society argued, among other things, that all of the complaints are fully interconnected and the matters have been decided by and/or are still before the Court. As such, the Board under section 68.8(a) of the Act does not have the authority to review these complaints.

4An oral hearing was held on January 23, 2012 to deal with the jurisdiction motion. For the reasons that follow, the Board ruled that it had jurisdiction to hear the merits of complaint #3 only and proceeded immediately to an oral hearing on the merits of that complaint.

BACKGROUND

5The Applicant and his spouse, [ ] (the “Mother”) are the parents of three sons aged 10, 8 and 6 years old (the “Children”). At a date not provided to the Board, but prior to September [ ], 2009, the children were apprehended by the Society.

6On September [ ], 2009 Child Protection Worker, [ ], visited the Mother in the family home to discuss matters related to developing a plan to return the Children to her care. The Applicant, in breach of a Court Order, was hiding in the home and heard the conversation between [the Child Protection Worker] and the Mother. He felt that some comments made by [the Child Protection Worker] were inappropriate.

7The child protection matter was heard in Court in London, Ontario on October [ ], 2009. The Court ordered on a temporary basis, that the Children be placed in the care and custody of the Society, with reasonable access to the Mother, supervised by the Society. In the Endorsement, the Court also noted the very disruptive and aggressive behaviour demonstrated by the Applicant while in the courtroom.

8A Settlement Conference was held in Court in London, Ontario on March [ ], 2010 and the Court once again noted the Applicant’s disruptive behaviour. Shortly thereafter, the Mother relocated to [city], Ontario.

9A further Settlement Conference was held on the child protection matter in Court in London, Ontario on June [ ], 2010. The Court ordered that the Children shall have supervised access visits with the Applicant at the Society office.

JURISDICTION

10The Society brought forward a motion to challenge the Board’s jurisdiction to hear the application under sections 68.1(4)(4) and 68.1(4)(5) of the Act.

11The following legislative provisions in the Act are relevant to the motion:

68.1(1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may

(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section;

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.

2(2)(a)

Service providers shall ensure,

a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interest are made and to be heard when they have concerns about the services they are receiving;

68.1(8)

The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court;

12At the start of the proceedings, the Applicant stated that he had not received a copy of the Notice of Motion. The Society could not verify that the Applicant had been served with its motion materials. The Society provided the Applicant with a copy and the Board granted a brief adjournment to allow him to read the motion.

13The Society submitted that the matters being complained about by the Applicant were matters that had been before the Court or were still before the Court and were ineligible for the Board to hear under section 68.1(8)(a). Specifically, that complaints #2 and #3 were directly connected to # 1(access visits), such that if the Board ruled that it did not have jurisdiction over complaint #1, then the Board would not have jurisdiction to hear the remaining two complaints.

Complaint #1 – Access visitation for the Applicant’s children

14The Society argued that access is a matter determined via Court Order and cannot be changed by it (the Society) or by the Applicant before the Board. Therefore, any concerns the Applicant may have about the terms of the access order must be dealt with in Court.

15The Applicant conceded that access visits for the Children, which formed the basis for complaint #1, was a matter that had been decided by the Court.

16The Board does not have the authority, under section 68.1(8), to review the subject of a complaint that has been decided by the Court. Having received the Applicant’s concession on this complaint and having heard the Society’s arguments based on section 68.8(a) of the Act, the Board grants the Society’s motion on this complaint and will not proceed to hear the merits of this complaint.

Complaint #2 – Alleged Threatening Comments from the Child Protection Worker to the Family

17The Applicant’s complaint relates to a comment he overheard made by [the child protection worker] that the Children would never be returned to the Mother’s care if she reconciled with the Applicant.

18The Society argued that the alleged comments made by [the child protection worker] to the Mother, and overheard by the Applicant, were confirmed by the Court in its October [ ], 2009 and March [ ], 2011 Endorsements. As such, the Court had already dealt with the matter of the comments. The Society also argued that if the comments were interpreted as threatening to the family, then the Mother should have raised the complaint to the Board, not the Applicant, as the comments were not directed at him.

19The Society also argued that it could not provide an opportunity for the Applicant to be heard and/or receive reasons for a decision that affected his interests, as it had no knowledge of the complaint until the application was forwarded to it by the Board on or after May [ ], 2010.

20The Society and the Applicant both acknowledged that during the pre-hearing conference of January 4, 2012, there was no agreement to add this specific complaint as an additional complaint to his application.

21The Applicant argued that this complaint was not before the Court. However, he conceded that he had not raised this complaint with the Society prior to the date of his application to the Board. He recalled that he first mentioned this matter to the Society in November 2010.

22Jurisdiction to hear a complaint based on section 2(2)(a) of the Act - providing an opportunity to be heard when a parent has concerns about the services he and/or she is receiving - implies that there has been an issue about services raised by a parent to the Society prior to submitting an application to the Board. This is not the case for the current application.

23The Board finds that it has no jurisdiction to hear this complaint as the matter was not raised with the Society prior to the application being made and the complaint was not subsequently added to the application on consent.

Complaint #3 – Request for a New Worker

24The Society submitted that the Applicant’s request for a new worker, made between September [ ], 2009 and the Court Order of October [ ], 2009, stemmed as a direct result of a matter that had also been decided by the Court, namely a temporary care order that allowed the Society to remove the Children from the family home. The Society concluded that complaint #3 was a direct result of an access matter that was later determined by the Court and if court-ordered access matters were beyond the Board’s jurisdiction, this complaint was beyond that jurisdiction.

25The Society further submitted that the Applicant and the Mother were not pleased with the implementation of the temporary care order and consequently the Applicant asked for a new worker. The Society also stated that this complaint was moot. In the spring of 2011, the worker, [ ] moved to a different job with the Society and a new Child Protection Worker, [new Child Protection Worker], began carriage of the family’s file.

26The Applicant argued that complaint #3 had not been before the Court. He stated that this complaint was directed to the Society and was not dealt with by the Court. He also argued that the Society’s Child Protection Worker worked on behalf of the Children with the family, which included both the Mother and him.

27The Applicant stated that, prior to the date of his application, he made a direct verbal request to [the Child Protection Worker] that he wanted a new worker and wanted to know the process. He indicated that he received no response from anyone other than [the child protection worker], who informed him that the matter was not her responsibility and that her supervisor would make that decision.

28The Applicant told the Board that he made at least two other similar requests to [the Child Protection Worker], but did not ask a supervisor about a new worker until after he applied to the Board. He believed that the new worker was assigned to the family file in 2011 for reasons other than as a response to his request.

29The Court of Appeal for Ontario released a ruling on matters similar to this on June [ ], 2011 in Children’s Aid Society of Waterloo v. D.D. 2011 ONCA 441 (leave to appeal to S.C.C. denied). The Court found that there is a distinct difference between what it does and what the Board may do.

The complaints that D.D. brought to the CFSRB did not relate to the protection application per se and, indeed, would in all likelihood be considered irrelevant to it. Her complaints related to the manner in which CAS delivered its services and its failure to address her complaints. [para 36]

The court and the CFSRB are concerned with different issues. The court, of course, is engaged in a determination of the best interests of D.D.’s children in terms of where they should live in the long term. The CFSRB, in this instance, is concerned with whether the CAS is carrying out is statutory mandate in terms of its dealings with D.D. in the short term, while matters are pending before the court. [para 42].

30The matters contained in the Applicant’s complaint relate to his communications with the Society. Sections 68.4(4) and (5) of the Act allow a person to complain to the Board if he believes that he was not heard when he had concerns about the services received as well as not receiving reasons for decisions made by a Society that affects the complainant’s interests. In this application, the Applicant’s allegation is that his request for a new worker was not heard and he was not given reasons for the Society’s decision to not change his worker.

31At the time of the application to the Board, the family, which included the Applicant, was receiving a service from the Society through the work undertaken by the assigned Child Protection Worker, [ ]. The Applicant’s complaint relates to the manner in which the Society delivered its services to him.

32The Board finds that this complaint is not directly linked to the access matter that was decided by the Court. Requesting a new worker was not a matter decided by the Court, nor is or was it before the Court. The Applicant alleges that he made a request for a new worker. No change occurred and he believes that he was not heard and he alleges that he did not receive reasons for this decision. The Board has the authority to review whether or not the Applicant was heard and given reasons for decisions which affected his interests.

33The Board also finds that this complaint is not moot as the change in worker that resulted from [the Child Protection Worker] taking on different responsibilities, occurred nearly one year after the application was received by the Board.

34The Board denies the Society’s motion on complaint #3 and will proceed to an oral hearing on the merits.

MERITS

Complaint #3 - Request for a New Worker

35For the reasons that follow, the Board finds that the Society did not hear the Applicant’s concern with respect to a change in worker and failed to provide him with reasons for its decision to not replace the worker when requested do so by the Applicant.

36The Applicant testified that his request to [the Child Protection Worker] for a new worker resulted from her comments to the Mother made on September [ ], 2009. He interpreted her alleged comment – “if you stay with the Applicant you won’t see your children again” – as a direct threat to the family. Consequently he asked for a new worker. He could not recall the exact date, but indicated that it was after the September [ ], 2009 meeting in his home between the Mother and [the Child Protection Worker] and prior to his application to the Board.

37According to the Applicant, [the Child Protection Worker] replied that she would look into the request, but the decision was the responsibility of her supervisor. The Applicant further stated that he did not know if the request was forwarded to [the Child Protection Worker’s] supervisor. He also indicated that he made verbal requests to [the Child Protection Worker] on two further occasions when he was meeting monthly with her, prior to him filing his application to the Board. [The Child Protection Worker] continued carriage of the file until the spring of 2011 when [the new Child Protection Worker] replaced her. The Applicant stated that beyond having [the Child Protection Worker] tell him once that a change in worker was the responsibility of her supervisor, nothing else was provided to him about the request being denied.

38The Supervisor of the Ongoing Child Protection Team, [ ] (the “Supervisor”) testified that she had been the Supervisor for the family’s Child Protection Worker from August, 2011 until the present time. She had succeeded two previous supervisors but had thoroughly reviewed all of their notes relating to this family. The Supervisor indicated that all Supervisors for the Society keep notes from the meetings held each month with each of their team members, to review the files and follow-up on matters as required.

39The Supervisor listed for the Board several dates when the Society had attempted to contact the Applicant and arrange meetings with him. While most of these attempts were unsuccessful, the Society maintained that it had offered the Applicant numerous meeting opportunities to present his complaints and be heard and he had failed to do so.

40[The Supervisor] also reviewed the Supervisors’ notes from the monthly meetings with [the Child Protection Worker] where the Applicant’s name appeared. In all instances, the request for a new worker was not mentioned in the notes. Based on her experience as a Supervisor, she stated that had a request for a new worker been reported by a Child Protection Worker, that request should have been referenced in the meeting notes. The Supervisor could not verify if the request was reported and not recorded, or that the request was not reported in the monthly meetings. Furthermore, the Supervisor was not able to verify if the request for a new worker was noted in the family’s file maintained by [the Child Protection Worker]. The Supervisor’s testimony was that it is the worker’s responsibility to raise any request for a change of worker with her Supervisor.

41The Society concluded its arguments by indicating that it did not have to comply with section 2(2)(a) of the Act. Specifically, that this obligation to hear parents’ concerns only applies “where appropriate” and the Applicant’s actions, that is, criminal convictions and “hiding in the house activity”, made it inappropriate to do so. The Society also argued that complaining about a worker is not equivalent to complaining about a service received as stipulated in section 68.1(1) of the Act.

42The Board disagrees with the Society’s arguments. First, the Applicant’s previous criminal convictions have no bearing on his right to be heard by the Society when he requested a change in worker. Second, the failure to attend meetings does not remove the onus from the Society to respond with reasons for deciding to not provide a new worker. And third, the duties of a Child Protection Worker to assist the family during the time when a child protection order is in place, are a direct service provided by the Society to the family. It is often the paramount service that families receive from Children’s Aid Societies.

43The Board accepts the Applicant’s testimony that he made his request for a change in worker at least three times to [the Child Protection Worker], as there was no evidence to contradict his statement. The Society argued that it had no knowledge of this complaint, however, [the Child Protection Worker], as its employee did. Determining what [the Child Protection Worker] did with this information would assist the Board in finding whether or not the Society complied with its obligations under section 2(2)(a). [The Child Protection Worker] was not called as a witness by the Society.

44What the Board knows is that the concern was raised and no one from the Society dealt with his concern. It is the Child Protection Worker’s responsibility to raise this concern with her Supervisor. The fact that it is not in any of the Supervisors’ notes implies that either the worker did not bring it to their attention, or it was not recorded by the Supervisor. The Board can only conclude that the three requests for a change in worker made by the Applicant were not heard. Had the Society indicated to the Applicant that it was not prepared to change the worker and given the Applicant an explanation for this decision, the Board’s conclusion may be different.

45The Society adduced no further evidence to substantiate what was said about the request, by whom, when, to whom, or how often the Applicant requested a new worker. The Board finds that the Applicant asked [the Child Protection Worker] about having a new worker assigned to the file and he did not receive reasons for the Society’s decision to retain [the Child Protection Worker] in her role as Child Protection Worker for the family until the spring of 2011.

DECISION

46The Boards finds that the Society failed to comply with section 2(2)(a) of the Act when it did not hear the service concern of the Applicant when he requested a change in worker. The Board also finds that according to section 68.1 (4)(5) of the Act, the Society did not fulfill its obligations to the Applicant, by failing to provide reasons for a decision that affected the Applicant’s interests.

47Accordingly under section 68.7(a) of the Act, the Board orders the Society to provide detailed written reasons for the decision to retain [the Child Protection Worker] as the Child Protection Worker for the family from the time period immediately after the September [ ], 2009 meeting in his home, to May [ ], 2010 when he filed his application to the Board.

48These written reasons are to be delivered to the Applicant within thirty (30) days of the rendering of the Board’s decision.

ORDER

49The 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 the internet.

Denyse Diaz

Denyse Diaz Presiding Member

Donald Butler Panel Member

John Gates Panel Member