C.Y. v. Children’s Aid Society of the Niagara Region, 2014 CFSRB 24

CHILD AND FAMILY SERVICES REVIEW BOARD

C.Y. v. Children’s Aid Society of the Niagara Region

REASONS FOR DECISION

Date: June 3, 2014

Citation: 2014 CFSRB 24

Indexed as: C.Y. v. Children’s Aid Society of the Niagara Region (CFSA s. 68)

INTRODUCTION

1The Applicant filed his application with the Board on [ ] regarding services received from Children’s Aid Society of the Niagara Region [the “Society”]. The application consists of the following complaints under s. 68.1(4)5 of the Child and Family Services Act, R.S.O. 1990 c.C.11, as amended (CFSA):

That the Society has not provided the Applicant with reasons for decisions that affected his interests, regarding the following:

1. the decision not to contact him prior to the apprehension of his grandchild [ ] [the “Child”],
2. the decision not to share with him the protection concerns the Society has regarding the Child ,
3. the decision not to share with him the protection concerns the Society has regarding him, his wife and the father of the Child,
4. the decision not to consider him and his home as a place of safety or as a temporary placement,
5. the decision made by the worker who proceeded to the apprehension of the Child not to answer any of the above questions,
6. the decision not to contact the father of the Child prior to the apprehension.

2The Board heard the Society’s motion on jurisdiction on March 21, 2014. The reasons for the decision were issued on April 7, 2014. The Board decided it had jurisdiction on all of the issues raised in the application and proceeded to a hearing on May 2, 2014. The reasons for the decision on the merits follow.

ANALYSIS

3The Applicant is the grandfather of the Child. His stepson is the Child’s father [the “Father”]. The Child was born on [ ]. The Society had decided to apprehend the Child at birth, and had given a letter of apprehension to the hospital on [his birth date]. The Child was physically removed from the hospital the next day, [ ], by an after-hours worker. Security was called by the hospital because the Applicant was disturbing the staff with constant questioning. The Applicant and his wife videotaped the apprehension on an iPhone.

4The Applicant left two messages on [the child’s birth day] to the Child Protection worker [the “CPW”] asking her to call him back. She was away until [the next day]. The same day he called the Supervisor and left a message. He had a conversation with the CPW in the early morning of [the next day]. An hour later the same worker had a conversation with the Father who was at the Applicant’s home and the Applicant had a brief conversation with her. The same day the Supervisor returned the Applicant’s call and left a message. The Applicant filed his application with the Board on [shortly thereafter] in regards to the events preceding that date.

5The Applicant testified that the Society never contacted him or the Father prior to the apprehension.

6The Society has commenced a child protection application before the Superior Court of Justice for the Child. In an Interim Decision of [ ], 2014 the Court gave to the Applicant and his wife party status for the purpose of the Society’s temporary care and custody motion. On [ ], 2014, the Child was placed with the paternal grandfather.

7On [ ], 2013 prior to the birth of the Child, the CPW contacted the applicant to locate the mother and asked him what was his position regarding the Child. The Applicant testified that he expressed an interest to be designated as a place of safety but would not work with the Society under a supervision agreement because there are no protection concerns with his family. He would cooperate with the Society only if the Court orders it. He also raised the fact that the Society was biased against him because of his involvement in the community with an advocacy organization that is critical of Children Aid Societies in Ontario and is seeking to increase their public accountability. The Applicant was concerned about the Child and the mother but not about the Father who was living with them.

8The testimony and case notes of the CPW in regards to this conversation are consistent with the testimony of the Applicant except that the CPW does not refer to a conversation around a “place of safety” but rather around a kinship plan. The notes states: “He, (the Applicant) stated that they would of course care for the baby as an alternative to foster care but would never agree to supervision of the Society in their home. Would only agree under a court order issued by the court - worker could not fully determine what he meant by this”. She testified that the Applicant never asked to be considered as a place of safety.

9The next important conversation was after the apprehension, on [ ] 2013 between the Applicant and the CPW. She testified that the Applicant asked her why the baby was not placed with them. She attempted to explain how the Society assesses kin placements but the Applicant was angry and it was a difficult conversation. He told her he would go to court to be added as a party.

10The CPW testified that she explained to the Applicant that the reason why the Child was not placed with him flows from their conversation of [ ] 2013 where the Applicant made it clear to her that he would not collaborate with the Society. The Applicant denied having said that and added that the Society had two months prior to the birth to “sort it out”. He also asked during that conversation that the information for the Father be forwarded directly to him. She explained to the Applicant that this was impossible due to confidentiality issues.

11The same day the CPW spoke with the Father. The Applicant came on the phone briefly to deny that he had said in [--] that he would not collaborate with the Society. The Father asked that all information from the Society be channelled through the Applicant. In order to do so, the CPW asked him to sign a Society consent form to that effect. The Father stated that he would sign his own consent form. In the end, no consent form was signed by the Father permitting the Applicant to receive the Father’s personal information from the Society.

12The issues raised by the Applicant relate to a very short period of time. The key events are the conversations between the Applicant and the CPW on [ ] and [ ], 2013, and the apprehension of [ ]. The application was filed with the Board 2 days later on [ ].

13The “right to reasons” under the CFSA, means a right to a meaningful explanation about decisions that affect the applicant’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8, the Board held that:

With respect to this section of the Act, 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 complainant 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.

14The Board will proceed to the analysis of each issue; however, it will begin with Issue 4 as it is the central issue.

Issue 4: The decision not to consider the Applicant and his home as a place of safety or as a temporary placement.

15A place of safety is defined at section 37(1) of the CFSA.

“place of safety” means a foster home, a hospital, a person’s home that satisfies the requirements of subsection (5) or a place or one of a class of places designated as a place of safety by a Director or local director under section 18, but does not include,

(a) a place of secure custody as defined in Part IV, or

(b) a place of secure temporary detention as defined in Part IV.

Place of safety

(5) For the purposes of the definition of “place of safety” in subsection (1), a person’s home is a place of safety for a child if,

(a) the person is a relative of the child or a member of the child’s extended family or community; and

(b) a society or, in the case of a child who is an Indian or native person, an Indian or native child and family service authority designated under section 211 of Part X has conducted an assessment of the person’s home in accordance with the prescribed procedures and is satisfied that the person is willing and able to provide a safe home environment for the child.

16The assessment referred to in paragraph 5 of section 37 is understood by the Society as referring to the Ontario Kinship Service Standards where the evaluation is described at Standards #2(1).

17The Intake Service Director testified that a place of safety is used until the Society appears in Court in the 5 days following the apprehension. In order to place a child in a family the Society needs to assess the home to ensure safety of the child and get the collaboration of the family receiving the child. If the Society cannot access the home to make this assessment, the process ends right away. The Society needs to see where the child will sleep, the parental capacity of the family, other residents in the household, etc. Following the placement, an initial assessment is completed within 30 days and then a comprehensive one in another 30 days.

18The Applicant is of the view that as he has two young children and as the Society is not involved in his life, his home is necessarily a place of safety and as such the Society has no protection concerns. The Society’s Intake Service Director summed up the Society’s position very succinctly: “Just because a home is not an open protection case does not mean that it is automatically a place of safety”.

19At the hearing, the Applicant asked the Intake Service Director if all this information was ever relayed to him about the process. The answer was again that he had made clear that he would not collaborate with the Society.

20According to the CPW, the Applicant did not ask to be a “place of safety” in [ ], but said that he was ready to care for the Child as an alternative to a foster placement and under his conditions. During the conversation of [ ] the Applicant asked the CPW the question why he was not considered as a place of safety and she explained to him that the reason why the Child was not placed with him was because of their conversation of [ ].

21It is clear to the Board that the Society understood the Applicant’s response during the [first] conversation as a firm refusal to collaborate with the Society, and a refusal to allow the Society to come to his house and speak with his children. Based on that response, the Society rejected the Applicant’s home as a place of safety or as an interim option for the Child when the decision to apprehend was made. In her testimony the Intake Service Director explained as follows: “If we can’t enter a home that stops the process.” This also informed the Society’s decision not to speak with the Applicant before the apprehension.

22The Applicant did not raise his wish to care for the Child with the Society again prior to the apprehension. Instead he waited for the Society to come back to him. Was the Society obligated to come back to him and explain its decision?

23The Board finds that before the Applicant asked the Society its reasons for the decision not to consider him as a place of safety, the Society did not have an obligation to contact him to explain its position. When he asked the question he was entitled to an answer, which he did partly receive on [ ], the reasons being his statement that he would not collaborate with the Society unless ordered by the Court.

24What the Applicant did not get as explanation is the reason why the Society needs his collaboration in the process leading to a kin placement or placement of safety. On this, the Board agrees with the Applicant that he was not provided with enough information to understand the Society’s decision.

25However, a fulsome explanation on the need for collaboration was provided at the hearing and the Board will not make any order on this complaint.

26If the Applicant had expressed an interest in collaborating with the Society to put together a plan to be a kin placement for the Child and the Society had not followed-up, the situation would have been different. But it was reasonable for the Society to conclude that the Applicant, following the conversation of [ ], would not collaborate with the Society and would only obey a Court order. The Society moved ahead with its plan and the Applicant following his logic, asked the Court to have party status and was granted his request to join the proceeding.

Issue 1: The decision not to contact Applicant prior to apprehension of the Child.

27The applicant testified that he asked the CPW why he had not been contacted prior to the Child’s apprehension on [ ]. He did not get an answer that day. He testified that the Society knew his position regarding his wish to care for the Child and that the Society had two months to do something about it. He said that he repeated his questions without getting an answer and that as of this day he still does not know why they did not contact him prior to the apprehension. The CPW denied the Applicant asked this question during their December conversation.

28The tone in the contacts between the Society and the Applicant was very tense and stressed most of the time. There was an atmosphere of mistrust and questioning of the other party’s motives. The CPW’s case note dated [day of call], entered in evidence, notes that “[the Applicant] spoke non stop and would not allow worker to answer his questions or pose questions . . .” The main issue during that conversation was why the Child was not placed with the Applicant.

29The Board believes that the CPW may have missed the question as the Applicant was talking a lot and was upset and angry. However, the evidence does not support on a balance of probability that the question was asked.

30In addition, in late [ ], the mother of the Child advised the Society that it was her wish that the Society not involve the Applicant in any plans for her Child, and that the Society not give him any information about her. Therefore, the Society considered any information about the mother and the Father of the Child as confidential. This information however was never given to the Applicant.

31The Board dismisses this complaint.

Issues 2 and 3: The decision not to share the protection concerns the Society has regarding the Applicant, his wife, the Child and the Father.

32The Applicant testified that he asked what were the protection concerns regarding himself, his family, the Father and the Child. The CPW testified that the Applicant did not ask her questions regarding the protection concerns the Society had regarding the Child or the Father or the Applicant’s own family during the conversation of [ ].

33The CPW testified that she does not recall the Applicant asked her about the protection concerns she might have about him, his wife and the Child during their [first] conversation.

34In her notes of the [ ] conversation she reports that she was hearing the Applicant in the background while she was talking with the Father and that the Applicant was asking the Father to “ask worker what protection concerns Society had with him, why hasn’t been served with court papers yet…” The evidence is not clear who the “him” refers to in that note.

35The evidence is not conclusive as to whether the Applicant asked those questions but even if they were asked, the Society’s answer was always coming back to the [first] conversation where the Applicant, according to the Society, did not have the intention to collaborate with the Society unless ordered by the court.

36Regardless of the exact time or framing of the question by the Applicant to the CPW, the Society was in no position legally to share with the Applicant any personal information, including current or past protection concerns, about anyone else other than the Applicant himself. In the absence of signed and informed consents by various parties involved in this case, the Applicant was requesting information that the Society was not in a position to share with him. The mother of the Child requested that the Society not share personal information about her with the Applicant. The Father of the Child never signed the consents required by the Society to share personal information about him with the Applicant.

37The Board finds that the Applicant’s request for information about persons other than himself and his family could not be met in view of the absence of permission to share such information with the Applicant. This was explained partly to the Father during the [ ] conversation with him but not to the Applicant. The CPW, when asked by the Father to have all communication go through the Applicant, explained that in order to do so, she needed his consent. The Father said that he would sign his own consent form which he never did.

38The Applicant was never personally given the explanation regarding the confidentiality requirement or about the mother’s refusal to have any information shared with him about her situation. However, as stated above, the evidence does not support a finding that the question was asked.

Issue 5: The decision made by the worker who proceeded to the Child’s apprehension not to answer any of the above questions.

39The Applicant videotaped the apprehension of the Child on [the day of birth]. The Board saw the video at the hearing. The after-hours worker who removed the Child from the hospital was repeatedly asked by the Applicant about the decision to apprehend the Child and place her in a foster home. The after-hours worker did not answer his questions but re-directed him to the worker who made the decision that the Child was to be apprehended. She told the Applicant that the apprehension was not her decision and that the decision had already been made.

40The Intake Service Director testified that the after-hours worker would have no knowledge of the file and that her duty was limited to apprehending the Child and gathering all the information relevant to the transfer of the Child from the hospital to the caregiver with whom the Child was to be placed.

41The Board finds that the apprehension was a very stressful moment for the Child’s mother as her baby was taken away from her. Throughout the entire event that was videotaped, the Applicant was forcefully and repeatedly asking questions of the worker. The Child’s mother, who was witness to the removal of her Child, was ignored and marginalized throughout, which was certainly adding stress to the mother in what already was a very difficult situation for her.

42The Board finds that the worker who was mandated to remove the Child from the hospital to a Society foster home acted properly, and answered the Applicant’s repeated questions by re-directing him to the appropriate staff in the Society who had full knowledge of the case and who made the decision about the apprehension. She was not refusing to answer the Applicant’s questions. The Board finds that the worker answered the Applicant’s questions properly within the limits of what she knew of the file and that she proceeded with professionalism considering the circumstances.

43The Board dismisses this complaint.

Issue 6: The decision not to contact the Father of the Child prior to the apprehension.

44The analysis of this point is hampered by the same issues referenced earlier concerning the relationship between the Society and the Applicant. In her [ ] case note the CPW enters the following:

• worker advised I [i.e. the worker] needed to speak with [the Father] directly, asked for his address and phone number

• [Applicant] refused to give it, demanded that all information be sent directly to him and [Applicant’s wife] at their address and phone. Worker advised that I do not have authority to speak with them at this time, need to speak with [the Father] directly

• [Applicant] continued to speak to worker in a hostile and verbally abusive manner. Worker asked that he pass the message to [the father] to call me, and then ended the call.

45The Applicant testified that the CPW refused to answer the question. The CPW testified that the question was never asked. The contradiction in the evidence reflects again the poor quality of the communication between the parties. The Applicant sincerely believes he asked the question and it is possible that again this question was buried in the flow of questions and accusations that characterizes the conversations between the parties. The Board is not satisfied that the evidence supports that the question was asked and therefore dismisses the complaint.

CONCLUSION

46The Board dismisses the complaints described at issue 1, 2, 3, 5 and 6.

The Board finds that the Society did not provide the Applicant with a complete explanation for its decision in issue 4. No order is made as the explanation has been provided at the hearing.

CONFIDENTIALITY ORDER

47Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purposes outside of the Board’s proceedings.