D.P. v. Children’s Aid Society of Hamilton, 2013 CFSRB 30

CHILD AND FAMILY SERVICES REVIEW BOARD

D.P.

v.

Children’s Aid Society of Hamilton

INTERIM ORDER

Date: June 11, 2013

Citation: 2013 CFSRB 30

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

INTRODUCTION

1D.P., the Applicant commenced an Application pursuant to section 68(5) of the Child and Family Services Act, R.S.O., 1990, c.C11, as amended, (the “Act”), because he was dissatisfied with the outcome of an Internal Complaints Review Panel hearing (the “2^nd ICRP”) that took place at the Society’s offices on November 19, 2012. The ICRP decision was detailed in a letter to him from the Hamilton Children’s Aid Society (the “Society”) dated November 29, 2012. The matter was heard before the Board on May 14, 2013, (the “3^rd hearing”) and focussed on the Applicant’s two complaints, which are as follows. First, the Applicant complained that there were many inaccuracies in the file, which the Society failed to address at the ICRP hearing. Second, the Applicant complained that the Society refused to address any of the service concerns that he raised at the ICRP hearing, as the Society refused to provide reasons or explanations for decisions that were made that affected his interests.

2At the conclusion of the hearing the Board reserved its decision on the issue of alleged inaccuracies in the Society’s file and rendered an oral decision and Order with reasons to follow on the issue of the Society’s refusal to address his services related complaint at the ICRP. This Order was issued in writing on May 16, 2013.

3With respect to the Applicant’s service concerns, the Board ordered the Society to provide the Applicant with reasons in response to four of seventeen questions that he had presented at the ICRP hearing, and which remain unanswered. The Board has re-worded the four questions in order to accurately reflect the information sought by the Applicant.

4Below are the Board’s reasons for its decision that the inaccuracies are to be addressed through a Notice of Disagreement that is to be prepared by the Applicant and put in the Society’s files where the inaccuracies are contained, as well as the reasons for the Board’s decision that four of the seventeen questions must be answered by the Society.

BACKGROUND

5In November and December, 2011 the Society conducted an investigation into a child protection concern regarding the Applicant’s 12-year old son (the “Child”) upon receiving a report from the Child’s school. During the course of that investigation the Applicant raised safety concerns for the Child due to alleged comments and behaviours of his former partner (the “Mother”) and her family (the “maternal family”). The Society terminated this investigation (the “1^st investigation”) in December 2011, without informing the Applicant by letter of its conclusions and without investigating his complaints.

6The Applicant re-raised his concerns in January, 2012. The Society conducted an investigation (the “2^nd investigation”) into the Applicant’s concerns. During the second investigation the Mother raised safety concerns for the Child while in the Applicant’s care. This investigation terminated in February, 2012 at which time the Applicant received a detailed letter from the Society, dated February 16, 2012 outlining its findings and conclusions from both investigations.

7Prior to receiving the Society’s letter the Applicant applied to the Board (CA12-0029) complaining under sections 68.1(4)4 and 68.1(4)5 of the Act about the 2nd investigation, its conclusions about the Child and the conduct of the child protection worker who did the investigations. An oral hearing (the “1^st hearing”) was held on this matter on May 9, 2012 and a decision released on May 23, 2012 (the “1^st decision”). As well, the Society held an ICRP for the Applicant on May 14, 2012 (the “1^st ICRP”). This ICRP was minuted and an 8-page document dated September 17, 2012, containing those minutes, was provided to the Applicant. The minutes indicate that the Applicant presented his concerns to the panel in the absence of the child protection worker and she made her case in the absence of the Applicant. The Applicant was not given an opportunity to hear her responses and to question her for clarifications and explanations.

8Prior to receiving the minutes the Applicant re-applied to the Board on July 17, 2012 (CA12-0127) citing inaccuracies in his file, the inadequacies of the 2^nd investigation and Society’s failure to comply with the complaints review procedure as specified in the Act. An oral hearing (the “2^nd hearing”) was held on these complaints on October 26, 2012 at which time the Applicant agreed to attend a new ICRP, the 2^nd ICRP, which is the one under review before this panel. Prior to attending the 2^nd ICRP on November 19, 2012 the Applicant provided the Society, at its request, with a numbered list of 17 questions related to service concerns (the “17 questions”) he wanted answered. The Applicant received a letter from the Society, dated November 29, 2012 that summarized its findings and conclusions from the 2^nd ICRP. His dissatisfaction with the outcomes from the 2^nd ICRP led to the current application before the Board.

PRELIMINARY MATTERS

9The letter following the 2^nd ICRP states that the Applicant had recorded the May 2012 proceedings of the 1^st hearing before the Board. The Applicant was informed that he could not record the proceeding. The Applicant reluctantly accepted this ruling from the Board.

10The Applicant asked the Board to assist with his request for the release of his file from the Society. The Society informed the Board that it could take up to a year to complete that task. The Board explained that it has no authority to intervene in this matter.

11The Applicant asked if he could withdraw his application and re-submit his complaints after he views his file. The Board declined the request as all relevant information is already available since this proceeding is limited to the materials before the 2^nd ICRP hearing which was held in November 2012.

ANALYSIS

12The main issues before the Board are as follows. First, the Applicant complained that there were many inaccuracies in the file, which the Society failed to address at the 2^nd ICRP hearing. Second, the Applicant complained that the Society refused to address any of the service concerns that he raised at the 2^nd ICRP hearing, as the Society refused to provide reasons or explanations for decisions that were made that affected his interests. The Board’s authority and the Society’s obligations are found in the following sections of the Act:

Complaint to Society

68 (1) A person may make a complaint to a society relating to a service sought or received by that person from the society in accordance with the regulations.

Application for Review by Board

68 (5) If a complaint relates to one of the following matters, the complainant may apply to the Board in accordance with the regulations for a review of the decision made by the society upon completion of the review procedure:

1. an alleged inaccuracy in the society’s files or records regarding the complainant,

2. a matter described in subsection 68.1 (4)

Matter for Board Review

68.1 (4) The following matters maybe 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,

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.

13The Act does not provide a definition of the term “inaccuracy” and does not provide guidance on how extensive the review of the alleged inaccuracy must be. The Board interprets its obligation regarding a review of inaccuracies in a Society’s file or record as determining that the parties genuinely disagree on a fact reported in the file or record. The Board does not have to determine if the statement, fact or incident reported did or did not happen. Also, the Board does not consider that a statement that is in the nature of a conclusion or opinion constitutes an inaccuracy.

The First Issue: Inaccuracies in the File

14The Applicant alleges that his file contained inaccuracies. The Society wrote on November 29, 2012 in its letter following the 2^nd ICRP that any alleged inaccuracies would not have changed the outcome of the investigations. It continues stating that:

“Therefore, the Panel supports the investigative findings outlined in [ ] the child protection worker’s letter to you dated February 16, 2012 and cannot accept your recommendation that the findings be retracted and a letter of apology issued”.

15At the 3^rd hearing before the Board the Applicant presented 23 separate alleged inaccuracies in his file and/or record. As each item was presented the Society either agreed that the file or record was inaccurate, stated its disagreement with the allegation or, in some instances, made no comment. For the purposes of this decision the inaccuracies will be dealt with on a document-by-document basis. Inaccuracies agreed to by the Society will be noted, otherwise the alleged inaccuracy is in disagreement.

a) Inaccuracies in the Society’s Summary Reply to the Board, February 22, 2012

16The Board has included in this review the alleged inaccuracies in the Summary Reply provided by the Society for the 1^st proceedings before the Board. No objection was made by the Society and it appears that these inaccuracies were raised at the November 29^th ICRP under review. Because they were considered at the ICRP, the Board includes them in its decision. The alleged inaccuracies are as follow[s]:

1. The Applicant alleges that the Summary Reply misleads the reader by indicating on page 2 that he had a long history of involvement with the Society whereas the Applicant states that much of the long history was for dealings between the Mother and the Society. The Society made no response at the hearing. The Board concludes that in the absence of a response from the Society, the position of the Applicant and the Society’s statement in the document conflict. As such the Board concludes that the parties disagree.

2. The Applicant alleges that the Summary Reply claims the investigation found “emotional harm” whereas the letter he received stated that “risk of emotional harm” was verified. The Society accepted that the statement in the Summary Reply was inaccurate.

3. The Applicant alleges that the letter leads the reader to believe that the Society completed its investigation within the allowable time frame. His position is that the Society did not investigate in its first investigation his allegations regarding the maternal family and the grandfather’s behaviour, and as such, by proceeding to investigate these allegations only in the second investigation, the Society was operating outside the timelines. The Society disagreed. Its position is that the allegations were the reason for the second investigation and were within the timelines. The parties disagree on this issue.

b) Inaccuracies in Society’s Letter to the Applicant, February 16, 2012

4. The letter indicates that the 1^st investigation was completed in its entirety. The Applicant alleges that the investigation was not completed. The Society argued that issue is resolved as the Board ruled on this matter in its decision of May 23, 2012, stating that the Society did not deal with his concerns in the 1^st investigation. Even if the Board dealt with this issue in its May 23, 2013 decision from another perspective, the document of February 16, 2013 still contains the alleged inaccuracies and as such the Board concludes that the parties disagree on this issue.

5. The letter states that the Child mentioned to the child protection worker about his fear of not seeing his mother again. The Applicant’s position is that the Child did not make that comment. The Society replied by indicating that it believed the child protection worker received the statement from the Child and that the Applicant had the opportunity to address this issue with the service worker at the Board’s 1^st hearing. Even if the Applicant had raised this issue before the Board at the 1^st hearing, the letter of February 16, 2013 still refers to an issue on which the parties disagree.

6. The letter states that the Applicant yelled at the Child for dropping a dish and made him cry. The Applicant alleges that the Child was upset and threw the dish. The Society did not offer a response at the hearing. The Board concludes that the position of the Applicant and the Society’s statement in the document conflict. As such the Board concludes that the parties disagree.

7. The letter indicates that one of his sons told the child protection worker that the Child was slapped in the head by the Applicant. The Society responded by indicating that the matter was dealt with at the Board’s 1^st hearing as the child protection worker retracted her comment about the “slap”. The Board concludes that the letter does not reflect anymore an accurate statement and as such the parties disagree.

8. The Applicant notes that page 2 of the letter contains information that the two boys denied to the child protection worker that they had sat on the grandfather’s lap. The Applicant alleges that one of the sons claims that he was never asked the question whether he had sat on his grandfather’s lap. The Society replied by indicating that the Board dealt with this matter at its 1^st hearing and the police investigation into the grandfather’s alleged behaviours found no merits for the Applicant’s initial allegations against the grandfather. The Board concludes that parties disagree on the issue of whether the child was questioned or not on the issue.

9. The Applicant understood that one of his sons reported to the child protection worker that the maternal family had made negative comments against the Applicant. Page 2 of the letter indicates that the child protection worker found no evidence of the maternal family saying anything negative about the Applicant and, during the 2nd investigation, the son made no disclosures of any negative commentary. However, on page 7 of the minutes from the 1^st ICRP (alleged inaccuracy number 13) the service worker acknowledges that the elder son reported to her that the maternal family would say negative things about the Applicant. The Society stated that this issue was dealt with at the Board’s hearing in May, 2012. The Board concludes that the letter contradicts the 1^st ICRP minutes and as such is inaccurate.

10. The letter indicates that the child protection worker found no evidence of alienation as the sons did not disclose any while being interviewed. The Applicant alleges this is a false conclusion as there was no proof that the child protection worker actually asked that specific question to the boys and it would be very hard for the boys to raise the concept on their own accord. The Society’s position is that issue was dealt with at the 1^st hearing. The Board at the 1^st hearing was not seized of the issue of inaccuracy. The Board concludes that the Applicant disagrees with the conclusion reached by the worker and as such, the parties disagree on this issue.

11. The letter raised the question of the use of inappropriate physical discipline by the Applicant. The Applicant disagrees with the Society’s statement that he felt there was nothing wrong with physical discipline even after being told it is illegal. The Applicant alleges that open-hand spanking is a legal form of physical discipline. The Society response is that the Supreme Court of Canada decided that physical punishment is not legal. The parties disagree on this issue.

12. The Applicant alleges that the Society claims to have conducted two investigations regarding the grandfather’s behaviours. The Child has told him that no questions were asked about the grandfather by the child protection worker during the 1st investigation. The Society did not have a response at the hearing on what the Child said to the Applicant. The Board concludes that in the absence of a response from the Society, the position of the Applicant and the Society’s statement in the document conflict. As such the Board concludes that the parties disagree.

c) Inaccuracies in the Minutes of the 1^st ICRP

13. Dealt with in (b) above as part of inaccuracy number 9.

14. The Applicant disagrees with the child protection worker’s observation that the Mother seemed terrified of him. He believes this is a false statement. The Society replied that this represented the child protection worker’s testimony for which the Applicant was not present at the ICRP. The Society believes her comments were accurate. The Board concludes that the observation was an opinion and does not constitute an inaccuracy. However the Board deals with that issue in the section of this decision related to the Applicant’s services related concerns not heard by the Society at the 2^nd ICRP.

15. The Applicant disagrees with the statement in the last paragraph of page 7 of the minutes that he refused to attend any meetings with the child protection worker. He informed the Board that he requested to tape the meetings, but never stated that he would not attend. He also disagrees that he was offered an opportunity to meet to discuss the 2^nd investigation. The Society replied that this issue was dealt with at the Board’s 1^st hearing and an explanation was provided in paragraph 20 of the Board’s 1^st decision. Again, the Board at the 1^st hearing was not hearing issues of inaccuracy in the file. The Board concludes that the parties disagree on these 2 issues.

16. The Applicant alleges that the statements and conclusions at the end of the last paragraph of page 7 of the minutes are inaccurate. The statement is to the effect that the telephone calls from the Applicant were very derogatory and unproductive. The Society responded by indicating that these were in fact conclusions based on observations, not statements of fact. The Board agrees that the statement is of the nature of an opinion and as such does not constitute an inaccuracy.

17. The Applicant alleges that the explanation of events found on page 3 regarding who threatened whom regarding the Mother’s departure from his home and who would call the police are inaccurate. He told the Board that it was he who asked the Mother to leave and would call the police if she would not do so. The Society accepted that the minutes of the 1^st ICRP were inaccurate in its reporting of the Applicant’s statement.

18. The Applicant alleges that page 5 of the 1^st ICRP minutes misrepresents the bullying incident regarding the Child. He informed the Board that the Child was not bullying anyone but merely mimicking behaviours of the grandfather. The Society accepted that the minutes of the 1^st ICRP were inaccurate in its reporting of the Applicant’s statement.

19. The Applicant alleges that the minutes show that he was interviewed several times about his complaints against the maternal family, the basis for the 2^nd investigation. He told the Board that he was only interviewed on that complaint one time. The Society had no comments on that inaccuracy. The Board concludes that in the absence of a response from the Society, the position of the Applicant and the Society’s statement in the document conflict. As such the Board concludes that the parties disagree.

20. The Applicant alleges that the phone conversation referred to at the bottom of page 6 of the minutes did not occur as he met with the child protection worker. The Society accepted this inaccuracy in the minutes.

21. The Applicant alleges that comments made by the child protection worker on page 7 of the minutes regarding when she learned that witnesses were available to prove his allegations against the grandfather are false. The minutes show that she learned of the availability of witnesses after she interviewed the grandfather. The Applicant claims he told the service worker and her supervisor about the witnesses in November 2011, before she interviewed the grandfather. The Society responded by indicating that no names were provided and none were asked for. The Board concludes that there is disagreement on when the worker was informed of the existence of potential witnesses.

22. The minutes state, on page 7, that the elder son was encouraged by the maternal family to move back to the Applicant’s home. The Applicant alleges that the son returned home on his own volition to avoid the grandfather. The Society disagrees with the Applicant’s position on the reason why his son came back home. The Board concludes that the parties disagree.

23. The Applicant alleges that the Society implies that it conducted two investigations into his complaint against the grandfather. The Society replied by stating that there were two investigations on this complaint; one by the Society and one by the police. The Society accepted this inaccuracy in the minutes.

Orders for the First Issue: Inaccuracies in the Society’s Files or Records

17Section 68(10) of the Act empowers the Board to prescribe orders on the parties as follows:

Upon completing its review of a decision by a society in relation to a complaint, the Board may,

(a) in the case of a review of a matter described in paragraph 1 of subsection (5), order that a notice of disagreement be added to the complainant’s file;

18The Society agreed to or accepted the alleged inaccuracies on five (5) matters designated above as number 2, 17, 18, 20 and 23. The Board orders the Society to place a document in the Applicant’s file or other Society’s files where those inaccuracies are found to acknowledge in detail each of the accepted and/or agreed inaccuracies. Furthermore, the Board orders that the Society provide a copy of this document to the Applicant and to the Board within 14 days of the rendering of this decision.

19The Society also argued that some of the alleged inaccuracies have been dealt with by the first Board’s decision. At the May 2012 hearing, the Board was seized of the issues related to the right to be heard and the right to have an explanation for a decision made by the Society. The Board was not seized of inaccuracies’ allegations as these inaccuracies had not been first reviewed by an ICRP meeting as required by the Act. As such the Board includes those inaccuracies in its decision.

20For all of the other inaccuracies reviewed above, the Board concludes, except for allegations number 13, 14 and 16, that the parties disagree on the allegation and as such, this constitutes an inaccuracy in the file or record. The Board orders the Society to place in the file a “Notice of Disagreement” if the Applicant chooses to submit the Notice of Disagreement explaining his position as to why the entry in the file or record is inaccurate. The Board will provide the Applicant with a form “Notice of Disagreement”. Upon receipt of the notice, the Board orders the Society to place this notice in the Applicant’s file.

The Second Issue: Questions Not Answered by the Society

21At the outset of the 3^rd Board hearing and in the Board’s Pre-hearing Report, dated April 3, 2013 the Applicant was instructed that if a question or service concern had been dealt with and/or answered at either the Board’s 1^st hearing or at the Society’s May 14, 2012 ICRP those questions would not be heard at the Board’s 3^rd hearing. The current hearing would be a review of the November 19, 2012 ICRP process and outcomes and not a review of the decision in file number CA12-0029.

22In that regard the Board finds that 13 of the 17 questions (the “17 Questions”) had been previously dealt with, as follows:

• Question numbered 1 dealing with alienation was answered in paragraphs 11, 14 and 19 of the Board’s 1^st decision,

• Questions numbered 2 and 3 dealing with alienation were answered in paragraphs 11 and 19 of the 1^st decision,

• Question numbered 5 dealing with the child protection worker assigned to the 2^nd investigation was answered in paragraphs 22, 23, and 25 of the 1^st decision,

• Question numbered 7 dealing with the 1^st investigation was not answered but the answer will come to light when questions numbered 8 and 9 are dealt with by the Society,

• Question numbered 10 dealing with the Applicant’s witnesses for the 1^st investigation was answered at the 3^rd hearing and no further explanation is required. The Society informed the Board that it knew there were witnesses available but did not receive a list of names from the Applicant. The Applicant stated that he did not provide the names as the Society did not ask for them. The Board accepts the explanation provided by both parties and deems the issue resolved.

• Question numbered 11 dealing with the time frame for initiating the 2^nd investigation will be answered when Society responds to questions numbered 8 and 9,

• Questions numbered 12 and 13 dealing with comments made by one of the Applicant’s sons to the child protection worker is part of the alienation issue and were dealt with as noted above in questions numbered 1, 2 and 3,

• Questions numbered 14 dealing with an alleged cover up was disputed by the Society as being merely conjecture and inference by the Applicant; that there are no grounds for the allegations. The Applicant did not argue otherwise and did not present any evidence to support the allegation. The Board dismisses this complaint.

• Questions numbered 15, 16 and 17 dealing with alleged domestic violence by the Mother were, according to the Society, answered by the child protection worker during her testimony and cross-examination at the 1st hearing when all of the child protection workers connections to the Applicant terminated. The child protection worker indicated that she had not considered the alleged domestic violence of the Mother necessitated consideration as part of her investigations. The Applicant did not like or agree with the responses but his questions were answered. The Board finds that these questions were dealt with at the 1^st hearing and no further action is required.

23The Board finds that four of the Applicant’s concerns, as articulated in the “17 Questions” were not dealt with at the ICRP’s. In fact the Society’s letter to the Applicant following the 2^nd ICRP stated that the panel supported all of the child protection workers investigative findings and that all of his service concerns had been addressed by the Board at its’ 1^st hearing. This blanket acceptance of the previous work of the child protection worker fails to address several questions where he was seeking specific answers.

24In that regard the Board found at the hearing that four of his questions were not dealt by and/or answered by the Society as follows:

• Question numbered 4 dealing with the Mother’s fear of him (battered wife) as reported in the minutes from the 1^st ICRP.

• Question numbered 6 dealing with the context of certain comments made by the child protection worker, as detailed on page 7 of the minutes and in paragraph 22 of the Board’s decision,

• Questions numbered 8 and 9 dealing with the failure of the Society to investigate the child safety concerns he raised about the Mother and the maternal family during the 1^st investigation.

Re-worded Questions

25The Board at the hearing reviewed with the parties the wording of the questions above in order to ensure that the questions were understood and agreed upon by both parties.

Question Number 4.

26What is the basis for the observations made by the child protection worker, that the Mother “seemed terrified of the father” (as reported in the minutes of the initial ICRP held on May 14, 2012)? Why did the Society decide not to follow-up with the Mother to see if she was terrified?

Question Number 6.

27The Society takes the position that the child protection worker’s statement, “I don’t know what you’re talking about” was taken out of context by the Applicant. How was it taken out of context? What was the true context for the statement?

Question Number 8.

28The Applicant raised concerns with the Society regarding the Mother and the maternal family. On what date does this report first appear in the child protection worker’s case notes? What were the specific concerns raised by the Applicant in his report? Why did Society close the first investigation involving the Applicant without taking any steps to investigate his concerns?

Question Number 9.

29With regards to the Applicant’s report referred to in paragraph five, above, why did the Applicant need to re-raise his concerns in January 2013, before the Society would agree to proceed with an investigation?

Orders for the Second Issue: Questions Not Answered by the Society

30Section 68(10) of the Act empowers the Board to prescribe orders on the parties as follows:

Upon completing its review of a decision by a society in relation to a complaint, the Board may,

(b) in the case of a review of a matter described in subsection 68.1(4), make any order described in subsection 68.1(7) as appropriate;

Section 68.1(7): After reviewing the complaint, the Board may,

(b) order the society to provide a response to the complainant within a time period specified by the Board;

31The Board ordered, in an Interim Decision issued on May 16, 2013, that the Society provide a letter that includes thorough answers to all of the four questions above. The Board ordered that the Society send the letter to the Applicant via regular mail and to the Board via facsimile within fourteen (14) days of the rendering of that Interim Decision (no later than 5:00 pm on May 30, 2013). The Society’s letter is to provide the information necessary for the Applicant to understand, in a clear and meaningful way, why the Society made the decisions it did.

32If the Applicant believes that one or more of the Society’s response(s) are not meaningful (in other words the explanations do not help him to understand the reasons why the Society made the decisions that it did), then the Applicant may raise this matter with the Board. In this scenario, the Applicant must file his reply with the Board (and copy the Society), within fourteen (14) days of receiving the Society’s letter (ex. no later than 5:00 pm on June 13, 2013). The reply must set out the Applicant’s concerns as to why he does not understand the response(s) provided by the Society.

33In the event that the Applicant files a reply to the Society’s letter, the Board will assess if the hearing must be reconvened or if the file will be closed. The panel will remain seized on this application until the file is closed.

CONFIDENTIALITY ORDER

34Parties 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.

ANDREA HIMEL _____________________

Andrea Himel

Presiding Member