J.G. v. Family and Children’s Services of Renfrew County, 2014 CFSRB 07

CHILD AND FAMILY SERVICES REVIEW BOARD

J.G.

v

Family and Children’s Services of Renfrew County

IMPLEMENTATION DECISION

Date: February 14, 2014

Citation: 2014 CFSRB 07

Indexed as: J.G. v. Family and Children’s Services of Renfrew County (CFSA s. 68)

INTRODUCTION

1This is an application under s. 68.1 of the Child and Family Services Act. The Board released its decision on September 12, 2013. It made three orders and stayed seized for implementation purposes. The Board held an implementation teleconference on November 14, 2013. The Board held a second implementation teleconference on February 7, 2014 in which it asked questions to obtain further detail from the Society and heard the position of the parties on implementation. The Board reviewed the Society’s letters dated October 8 and December 4, 2013 and the Applicants submissions dated October 28 and December 9, 2013.

2The Board finds that the Society has complied with orders numbered 2 and 3 but has not complied with order numbered 1.

For ease of reference, the Board’s orders are that:

1. The Society hears the Applicant’s concerns about the effect on the Child of the March incidents, in the context of ongoing access issues and the history of domestic violence. The Society, after considering potential risks, shall provide detailed written reasons to the Applicant, setting out its findings, the factors it took into account and how, including the contextual factors noted above, the perspective of the Applicant and the Child Protection Standards/Spectrum;

2. That the Society will hear the Applicant’s concerns about problems with implementing the access order and particularly the uncertainty as to when the police should be contacted and provide a response to those complaints which will include revising the service plan to address those concerns because the service plan defines the relationship between the Applicant and the Society; and

3. In response to the complaint about e-mail communication, the Society will provide a written a copy of its e-mail policy to the Applicant and make inquiries with respect to the nature of any Human Rights Code related accommodation sought by the Applicant. The Society is reminded of its obligations as a service provider to accommodate disabilities to the point of undue hardship. The Applicant is reminded persons seeking accommodation of a disability have an obligation to participate meaningfully in the accommodation process.

3The question for the Board is whether the Society did what it was required to under the orders in terms of any actions. Further, with respect to reasons, the question is: was the Applicant given sufficient information regarding the factors that were taken into account in making the decision, to allow her to understand why and how the decision was made?

4With respect to the Board’s third order, the Board found on November 14, 2013 that the Society had complied with the first part of the order (email policy) and gave it until December 5, 2013 to comply with the accommodations aspect of the order. The Board clarified its order in its implementation decision dated November 18, 2013. The Board is now satisfied that the Society has complied with the accommodations portion of the Order.

5The Society met with the Applicant to ask her what accommodations she needed and arrived at ten accommodations for specifically identified disability-related needs. The Applicant’s concern about the late delivery of the Society’s submission on December 5, 2013 in this application relates to the Board’s process and the solution would have been for the Board to offer the Applicant more time, if needed to respond. The Board trusts that the Society will follow its accommodations in future. Moving forward, the Applicant should identify any concerns in this regard directly with the Society.

6With respect to the Board’s second order, the Board finds that the Society has complied. The Society has stated in writing and on the teleconferences that it will continue to receive from the Applicant any concerns she has relating to her Child’s safety. The Society could not provide examples of what might be a safety concern versus a concern about implementing ongoing access, stating that it depends on the circumstances. This will have to be assessed on a case by case basis. However, the Applicant can be guided by s. 37(1) of the Act which sets out the grounds on the basis of which a Child protection concern might arise. The grounds relating to emotional harm are reproduced below at paragraph 15.

7The Applicant indicated that she is now operating on the basis of the direction of the Judge on November 13, 2013, which is set out in the Society’s December 4 letter. Specifically, she is providing access at her discretion. She has not been able to contact the Father and he has not seen the Child since November. She mentioned a contempt proceeding but did not have details and was uncertain whether the access terms of the custody order between her and the father were still in place. Those terms were enforceable by the OPP and overlapped with the Society order, causing some confusion.

8The Society no longer has an order and therefore, no role unless there are protection concerns. The service plan is now over and thus amending the service plan as originally ordered by the Board, is not an option, as it no longer exists. The Society cannot provide legal advice about the access order and stated in its responses that where concerns arose and where it could not get involved, it would suggest that the Applicant speak to a lawyer. The Society has set out its role and its position with the level of clarity that it can in the circumstances, as it cannot predict what types of issues will arise in future.

9The Board recommends that to avoid the confusion that occurred on the Easter weekend, in which the Society spoke with the father and the Applicant’s mother but did not follow up directly with the OPP and the Applicant, a process of fully “closing the loop” be put in place by the Society. Thus, if the OPP and the Society are both contacted over any incident, the Society should keep in contact with both the OPP and the Applicant and ensure that all involved are aware of any decisions or outcomes directly.

10The Board makes the above recommendation to assist the parties in moving forward.

11The Society has not complied with the Board’s first order. The Society undertook before the Board, to investigate the March/Easter incidents and the impact of the inconsistent access on the Child. They have not done so; they made this new decision after the Board made its order.

12The parameters surrounding the Board’s original order have changed because of the subsequent decision not to investigate. The Board found that the Applicant had not been heard and ordered the Society to comply with the Act by hearing her and providing a detailed response with reference to the Eligibility Spectrum (“Spectrum”) and the Child Protection Standards in Ontario (“Standards”).

13While the Society has met with the Applicant and the Child, it has not complied with the spirit of the Board’s order which is based on ensuring that the impact on the Child be assessed. The Society did not interview the Child because time has passed and it does not want to re-traumatize her. This reasoning is part of its new decision not to investigate. However, the Board has already ruled that the impact on the Child needs to be addressed in order to fully hear the Applicant. The Board accepted the Society’s undertaking and assumed this would be done, through an investigation. The Society heard from the Applicant that the Child cries and that the Child vomits. The Society does not have Child protection concerns because the Applicant is getting help for the Child, through therapy. However, based on the worker’s description of the Child, the Society cannot properly assess the Child with reference to whether she had emotional harm because the Child is reticent to talk about her parents’ conflict. The worker does not want to interview her about past events that might cause her further trauma but consequently, the Society is left without the information it needs to hear the Applicant mother’s concerns about emotional harm.

14Under the Act, a Child is in need of protection relating to emotional harm if:

s. 37 (1)

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(f.1) the child has suffered emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;

(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child;

(g.1) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) and that the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm;

15Under the Spectrum, section 3 contains a scale with codings of differing severity relating to allegations of emotional harm as a result of conflict between parents over custody. These range from the Child experiencing significant symptoms (extremely severe) to some symptoms (moderately severe) to minimally and not severe and include the risk of further harm because of unchanged or worsening conditions and a lack of services to address the harm. (p 63, D and 65, I). The Spectrum also includes codes relating to risk because of exposure to domestic violence (e.g. H at p. 65).

16At the teleconference, the Board addressed the Spectrum and the Standards because the Society was supposed to make reference to them in their explanation about its assessment of the Child’s risk. They made general reference to parts of the Standards but not the Spectrum.

17The worker advised at the teleconference that she probably would have “coded” the March/Easter incidents under section 3, scale H or I. These are the moderately severe codes. This represents the starting point of the process and not the conclusion. The process in an investigation would be to assess whether or not there was risk of harm or actually harm.

18Under the Standards, when assessing a Child’s vulnerability, the Society looks to things like whether the Child displays behaviors that may affect her immediate health or safety and the protective factors in the home such as what resources the parent has provided (Standard 2 p. 17, 18). The Society mentioned several factors in their letter of October 8, but did not link them to the Child. The Standards also specifically recognize that exposure to domestic violence is a risk factor for children but that where the risk is not as high, community based services should be offered to the family (Standards, p. 21, 22). The Society’s letter does not contain this type of detail, which is expected by the Board.

19The Society has not complied with the aspect of the Board’s order relating to assessment of the impact on and risk to the Child and a thorough explanation of that assessment. The Board tried to fill in the gaps at the teleconference but gaps remain in terms of the impact on the Child.

20The Society did succeed in clarifying the following:

• The worker believes the Applicant’s version of events relating to March [ ] and Easter weekend.
• The Society does not need to interview the other adult who was present with the Applicant (her co-worker) in order to establish what occurred.
• They have no Child protection concerns based on what they know thus far.

21However, the Society’s analysis of the impact on the Child to date does not include the Child’s perspective and experiences or an analysis of whether the Applicant’s being exposed to domestic violence in the past, combined with the father’s reaction when she appeared with another male, in any way puts the Child at risk for future exposure to harm. These pieces are missing and form part of the Board’s order.

22The Board is looking for a practical solution that takes into account the information that the Society has already gathered and its acceptance of the Applicant’s version of events. Therefore, after hearing from the Applicant about the new decision not to interview the Child if the Society maintains its position that it should not interview the Child, the Society should obtain information about the Child’s Potential experiences of/risk of emotional harm, from the therapist. The Applicant advised that she has provided that consent and there has been no follow up. Interviews with collaterals can form part of an investigation or assessment of risk to a Child. This approach would answer the Society’s concerns about traumatizing the Child but would also mean genuinely hearing the Applicant, as demonstrated by following up on the outstanding gaps in information.

23The Board therefore orders that in order to comply with its order to hear the Applicant:

1. The Society shall hear from the Applicant at a meeting in person or over the phone, about the decision not to interview the Child about the time period in question and about ongoing inconsistencies in access.
2. The Society will then decide whether it will interview the Child or not and, if it chooses not to, it shall consult with the Child’s therapist about whether the Child has suffered emotional harm or is at risk of suffering emotional harm related to her father’s behavior on March [ ], Easter weekend 2013, and the ongoing inconsistencies in access, with reference to the factors contained in the original order and as elaborated on at paragraph 22 above.
3. The Society will then prepare a written explanation as directed in the original order with specific reference to the Spectrum and the Standards and the Child.
4. The Society shall have thirty days from the date of the order to complete all of the above and to provide the written explanation (reasons) to the Applicant.

24The Society has complied with the Board’s orders numbered 2 and 3. The Board will not remain involved in implementing order numbered 1 and its new orders in that regard. The Board trusts that the Society will now comply and now more fully appreciate the purpose of the orders.

CONFIDENTIALITY ORDER [25] 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-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.