F.M. v. Children’s Aid Society of Hamilton, 2013 CFSRB 19

CHILD AND FAMILY SERVICES REVIEW BOARD

F.M.

v.

Children’s Aid Society of Hamilton

REASONS FOR DECISION

Date: April 11, 2013

Citation: 2013 CFSRB 19

Indexed as: F.M. v. Children’s Aid Society of Hamilton (CFSA s.68)

INTRODUCTION

1F.M. (“the Applicant”) has brought an application to the Child and Family Services Review Board (the “Board”) on November 21, 2012, pursuant to sections 68.1(4)4 and 68.1(4)5 of the Child and Family Services Act (the “Act”) regarding a matter relating to services sought or received from the Children’s Aid Society of Hamilton (the “Society”).

2The Applicant complained that the Society did not answer a number of questions he asked of the Society’s First Response Worker (the “Worker”) following a call the Worker made to a friend of the Applicant, warning the friend that the Applicant was “dangerous to children”.

3The Society took the position that the Worker answered his questions to the best of her knowledge.

4The Board dismisses the application.

Background

5The Applicant’s friend informed him that on October [ ], 2012 she received a call from the Worker. According to the Applicant’s friend, the Worker cautioned her that he was “dangerous to children” and to keep her granddaughter away from him. The Worker had received a report that the friend’s granddaughter was visiting the Applicant’s home. The Worker did not say why the Applicant would be a danger to children. The Worker made no mention of any child protection issue related to the Applicant, and made no mention of his children’s situation.

6The Applicant’s friend testified that she did not understand why the Worker called her. She stated that she has known the Applicant for 9 years, and they are very good friends. Her children had been involved in activities with the Applicant and they had been friends with his children. The friend stated that she has custody of her 14 year old granddaughter who has never complained about the Applicant.

7Following that call, the Applicant’s friend decided to keep her granddaughter away from the Applicant because she was fearful that the Society would remove the child from her care. She was not told that that would be the case, but the tone of the conversation with the Worker gave her that impression.

8The Worker testified that she held the position of First Response Worker at the date of the call to the Applicant’s friend. Her responsibilities were to take calls or any other information from people reporting a potential risk of harm to children, and to assess the information to decide the next steps. The Worker had received information that the granddaughter had an unsupervised visit with the Applicant whose visits with his own children were supervised. She determined that she had reasons to access the Applicant’s file and to gather information. She did a basic review. After discussions with her supervisor, a decision was made that a call to the grandmother would be sufficient in the circumstances.

9The Worker testified that the conversation with the Applicant’s friend was polite and brief. She testified that she did not say that the granddaughter could not visit the Applicant. She said, instead, that the Society would have concerns if a child were to be left unsupervised in his care. She denied having used words such as “dangerous to children”.

10The Applicant saw the action of the Society as an attempt to alienate his friend against him as, he said, the Society did with his own children. On November [ ], 2012, the Applicant called the Worker and asked her a list of questions he had prepared. As he felt that the worker was getting uncomfortable with the questions he decided to send them in writing to the Society, which he did on November [ ], 2012. Before receiving an answer from the Society, on November [ ], 2012, he filed an Application with the Board.

11The Society did not have time to respond to the Applicant’s letter, which contains the same questions the Applicant asked of the Worker. The Worker testified that she believed a copy of the Applicant’s complaint to the Board had already been received by the Society when she received the letter addressed to her with the questions asked on the phone.

12The Society stated that it provided its answers to the Applicant’s letter through its Summary Reply to the Application, on December [ ], 2012. The Applicant testified that the letter offended him; he considered that the Society’s explanation was more an attack than an explanation. He perceived the answers as evasive whereas he was only seeking the truth.

Analysis

13The Board has the authority to determine if the Applicant received explanations for decisions made that affect his interests. The Board’s authority and the Society’s obligations are found in the following sections of the Act:

14Section 68.1(4) 5 read as follows:

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

(5) Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

15The Applicant sought explanations from the Society. It does not appear from the evidence that he raised concerns and wanted the Society to address the concerns he had raised. In these circumstances, the Board will analyze only whether the Society provided an explanation as required under section 68.1(4)5 of the Act.

16As the Board stated at paragraph 13 of its decision in J.G. v Windsor-Essex Children’s Aid Society:

With respect to s. 68.1 (4) 5, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A parent must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

17In order to determine if the Society has met its obligations, the Board must examine the period prior to the Application. In the case under review, the Board will consider only the response given by the Society during the conversation between the Applicant and the Worker. The Summary Reply filed in December is a response to the Application and cannot replace the explanation, as envisaged by section 68.1(4) 5 of the Act. However, the Board has taken into account in its analysis the fact that the Society did not have time to answer the Applicant’s letter, as the complaint to the Board was filed before it received the letter.

18The questions asked by the Applicant to the Worker are listed below. The Board has assessed whether, at the end of the conversation, the Applicant had or had not obtained the explanation for the Society’s decision to proceed with the call to his friend.

[19] Question 1 Are you legally entitled to access my file? Have been assigned to my case? How did you become aware of the details of my file?

Question 2 Under what authority are you allowed to discuss and divulge the details of my life to the public?

Question 3 Where in my file does it say that I am dangerous to children? Please provide the source of this information.

Question 4 Are you aware that (the Applicant’s friend) feels threatened and intimidated by your call stating that I am dangerous to children?

Question 5 Is it the responsibility of the Children’s Aid Society of Hamilton to discuss and divulge my information to the public?

Question 6 Does the Children’s Aid Society feel that I am a danger to all children? On what basis, and what evidence does the CAS of Hamilton have that suggested that I am dangerous to all children.

Question 7 What children does the CAS of Hamilton consider at risk of harm with regard to the statement that was made, that I am dangerous to children?

Question 8 Are you aware that your conversation may be a breach of the criminal code of Canada?

Question 9 When did I become dangerous to children?

Question 10 Who else received information that I was dangerous to children and who else was contacted regarding my file?

Question 11 How many times has the CAS of Hamilton warned the public about a parent who is maintaining a supervised access arrangement?

20The Board notes that questions 3, 6, 9, relate to the alleged statement that he is a “danger to children”. Questions 1, 2, 5, 10, relate to the issue of access to his file by a Society worker and the disclosure of personal information to the public.

Danger to Children

21With regard to the question of whether the Worker used the words “danger to children,” questions 3, 6 and 9, the Applicant testified that he was not sure that the Worker used those words with him during his conversation with her.

22The Worker testified that she told the Applicant that she never used those words in her conversation with the Applicant’s friend. She testified that she does not use the words “being a danger to children” to describe a situation such as the one in this case. She would use “risk of harm” or “child protection concern.” She also informed the Applicant that she had no specific details about his protection file.

23The Board finds the version of the Worker more credible and that it was unlikely that she had used the words “dangerous to children”.

24The Applicant testified that the Worker said that, in the Society’s opinion, because there was a supervision order, he was a danger to children. The Board finds this to be the Applicant’s interpretation of what the Worker said. However, the Board notes that the Applicant was told there was a connection between the fact that he had supervised access to his children and the Society’s decision to call his friend.

Personal information

25Regarding the Applicant’s questions related to the release of his personal information to the public, questions 1, 2, 5 and 10, the Worker testified that she told the Applicant that no specific information had been released about his family. This was confirmed by the testimony of the Applicant’s friend herself.

26The Applicant testified that the Worker explained that when a child is at risk, the Society has an obligation to take action to “remove the risk”. The Worker testified that she informed the Applicant that she was allowed to access his file and had an obligation to follow-up on the information received. She did not explain to him how she got involved. He testified that the Worker explained that as a First Response Worker it was her responsibility to call his friend.

27The Board finds that the Applicant received an explanation as to why the Worker had to access his protection file. He was also informed that no personal information regarding the Applicant and his family had been released during the conversation between the Worker and the friend. This was confirmed by the testimony of the Applicant’s friend. The Worker could not give further explanation to the Applicant as no information had been released. She had already explained to him that she had an obligation to act, based on the information received by the Society.

28Regarding question 4, how the Applicant’s friend felt following the call she received, the Board notes that an answer was provided. The Applicant testified that the Worker acknowledged that she was unaware of how his friend felt and stated that the friend was welcome to call her. The Worker confirmed the testimony of the Applicant. The Board finds that the Applicant had an answer to his question.

29Regarding question 7, the Worker testified that she did not understand the question. She advised the Applicant that she did not feel able to answer his question and needed to refer it to the Society’s legal department. The Board finds that this was an acceptable answer and is indicative that the Society was ready to provide an explanation.

30Regarding question 8 and the breach of the Criminal Code, the Board finds that the Worker answered the question honestly, that is, that she had no knowledge of the Criminal Code and that she was working within the Act.

31Finally, question 11 was of a general nature. The Board finds that this issue does not affect the Applicant’s personal interest.

32The Board has determined that the Society met its obligations to provide an explanation to the Applicant for a decision that affects his interests, in the specific context of this case. The Board notes that it was the first time this Worker was in contact with the Applicant. Her knowledge of his personal situation was limited; this led her to be prudent in her answers to his questions. The exchange did not appear to be a conversation but more of an interrogation. The Board finds that the exchange with the Worker was not performed in a context favorable to the Applicant’s understanding the action of the Society and that the Worker answered the questions to the best of her knowledge.

33Timeliness of a response is a factor to be considered. In this case, the Application to the Board was made before the Society received the written questions and only a few days after the conversation with the Worker. The Board finds that the Society was not given a full opportunity to provide answers to the Applicant.

34Given that the legal context of the Society’s obligations might be difficult to understand, the Board allowed the Society at the Hearing to provide more information to the Applicant.

35The Board dismisses the Application.

CONFIDENTIALITY ORDER

36Parties 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.