C.V. v. Children’s Aid Society of Ottawa, 2015 CFSRB 13

CHILD AND FAMILY SERVICES REVIEW BOARD

C.V.

v.

Children’s Aid Society of Ottawa

REASONS FOR DECISION

Date: March 17, 2015

Citation: 2015 CFSRB 13

Indexed as: C.V. v. Children’s Aid Society of Ottawa (CFSA s.68)

INTRODUCTION

1C. V. (the “Applicant”) filed an application on November 13, 2014 with the Child and Family Services Review Board (the “Board”) pursuant to subsection 68.1(4) 4 and 5 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (the “Act”), against the Children’s Aid Society of Ottawa (the “Society”).

2The Application consisted of the following complaints under s.68.1(4) 4 and 5 of the Act, as summarized in the January 13, 2015 report of the Pre-Hearing Conference held on January 7, 2015.

“That the Society has not heard the Applicant’s service concerns or heard her when decisions were made and has not provided her with reasons for decisions that affected her interests, regarding the following:

1. Response level to complaints post March 11, 2014;

2. Behaviour of the Society Worker.”

3The Board must decide whether or not the Applicant’s concerns were heard by the Society and whether or not the Society gave the Applicant reasons for its decisions. The hearing on the merits was held in [City] on February 17, 2015.

4For the reasons set out below the Board finds that the Society did not fully hear the Applicant’s concerns as required by section 2(2)a of the Act, and consequently that the Society did not provide her with reasons for the decisions made in response to those concerns as required by section 68.1(4) 5 of the Act.

BACKGROUND

5The Applicant has two children, a seven year old boy and a six year old girl. The children live with their father and the Applicant confirmed that he has custody through an informal arrangement. The Applicant and the children’s father separated in 2010.

6The Applicant has supervised visits with the children on an irregular basis, and this is a significant source of the conflict between the Applicant and the children’s father. At the time of the hearing, she had not seen her children since a supervised visit on November 22, 2014.

7The Applicant asked the Society to work with her on the concerns she has about her children’s health and safety. She feels a need to protect them from what she described as a physically and mentally abusive father. She alleges that he fails to provide medical care when they need it, and generally neglects their health. She also alleges that he is a drug user, and that the Society refuses to ask him to submit to drug screening. She also states that she has asked the Society to arrange for drug screening for the children because of the drugs that they are exposed to in their father’s home.

ANALYSIS

8The relevant provisions of the Act are as follows:

2(2) Service providers shall ensure,

(a) 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;

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:

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68(1) as required under subsection 68(2).

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

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.

6. Such other matters as may be prescribed.

68.1(5) Upon receipt of a complaint under this section, the Board shall conduct a review of the matter.

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

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

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

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint; or

(f) make such other order as may be prescribed.

9The Board heard testimony from the Applicant and from the Society’s Child Protection Worker (the “Worker”) at the hearing. The Board examined in detail the two issues from the Pre-Hearing Report, listed above in paragraph 2. Since the two issues are closely related and in fact overlap with one another, they will be dealt with together, in the following paragraphs.

10There is significance in the Applicant’s first statement of the first issue, relating to the complaint focussing on the time period after March 11, 2014. On that day, there had been a meeting between the Applicant and three staff of the Society, namely the Family Services Worker, the Child Protection Supervisor, and the Service Manager. The minutes of that meeting show that the topics discussed came under three broad headings: “What Is Working Well”, “What Are We Worried About”, and “What Needs To Happen?”. The minutes show that there was a fulsome discussion on a number of issues felt to be relevant to both the Society and the Applicant. Full agreement was not reached on each topic, but there is evidence of an honest exchange of viewpoints and opinions.

11The minutes of the meeting and a subsequent e-mail from the Service Manager to the Applicant seem to confirm that the meeting was a positive one, and that the Society had given answers to the questions that the Applicant posed. The Applicant also stated at the meeting that she felt ready to “move forward now” and work with the Worker towards the goal of getting more access time and eventually attaining unsupervised access visits. It was acknowledged that the terms of the access visits had been set by the court, and that only the court could change those terms. The e-mail concluded that the staff at the Society had a better understanding, as a result of the meeting, of the level of anger and frustration the Applicant has felt throughout the process.

12It is the Society’s position that at the March 11, 2014 meeting, it did hear the Applicant, and did give her reasons for a variety of decisions that the Society made. There was agreement between the Service Manager and the Applicant that the meeting was positive. The Board concurs with that impression. However, the Board notes that the Applicant’s complaint stated very clearly that her complaint relates to the period of time since the March 11, 2014 meeting, and that her testimony dealt with the frustrations in communication and her fears about her children are for the period since the March 11, 2014 meeting.

13Some two months prior to the March 11, 2014 meeting, there were e-mails between the Applicant and the Worker that expressed clearly the Applicant’s level of frustration with the Worker, and what the Applicant described as vague answers and very infrequent contacts. This in many ways led to the March 11, 2014 meeting.

14It was clear to the Board that the twelve months since that March 11, 2014 meeting have seen deterioration in the relationship between the Applicant and the Society.

15Currently, the Applicant complains to the Society that the children’s father is not properly looking after the children’s physical, medical, and emotional needs. There is major conflict between the parents when one parent buys medication for a given condition and the other parent refuses to use it. A number of examples of this were given. As well, the Applicant alleges that the father uses drugs, specifically marijuana. The Applicant relates that the police have been at his house, and have acknowledged that there was a smell of marijuana. The Applicant believes that this is grounds for the Society to intervene. She has frequently asked the Society to request that he take drug tests. She believes that her children live in an unhealthy environment, and are at risk because of the use of drugs in the father’s home. In fact, she believes that there is physical and emotional abuse occurring in the father’s home.

16The Worker, in his testimony, related that the father acknowledges smoking marijuana, but never in front of the children. As well, he denies using any hard drugs. The Worker related that there have been drug tests ordered by the court, but that to his knowledge the father has not taken these tests and the court has not enforced its order.

17As well, the Applicant is very frustrated with the Worker, alleging that she does not get a response from him when she contacts him with her issues of concern. She wants the Society to keep the family file open, and to intervene regarding the manner in which the children are looked after in their father’s home. A number of times, she wondered what would have to happen before the Society would take notice, and take action to protect the children. She told the Board that, if the Worker visits the children – and she is not sure if he does – then he does not share any information with her.

18The Worker’s contact with the Applicant is infrequent. This is borne out in a different e-mail, where the Worker notes that, in the year preceding the meeting, there was a total of 3 meetings and 5 e-mails between the Worker and the Applicant, as well as 4 voice-mails with the Worker’s supervisor. The Worker also confirmed that he had only two substantive face-to-face meetings with the Applicant in the last year, namely at the March 11, 2014 meeting and on September 25, 2014 when the Applicant requested a meeting to again re-iterate her concerns to the Society. He acknowledged that he communicates by e-mail with the Applicant only when he needs to respond to e-mails that she initiates. He also told the Board that he has face-to-face contact with the children’s father on a monthly basis, as is required by provincial guidelines for visiting custodial parents when concerns are expressed about the children’s care. However, the guidelines do not set a minimum frequency for visits with the Applicant, as she is not the custodial parent.

19The Applicant relates that the Worker does not treat her concerns seriously, and that over the last number of months she has only received two phone calls from him, whereas she puts in many calls to him. She is firmly convinced that the Worker avoids her and she told the Board that he does not want to talk to her about her children and her concerns. She alleges that he has sworn at her, and that he has said that she is “a joke”, and often treats her in a disrespectful manner. She stated that there has been no contact from the Worker since she filed her application with the Board in mid-November.

20The Applicant is frustrated in her attempts to get information from the Worker. She told the Board that there usually is a 2 to 5 day delay in getting a response to her e-mails. When the response comes, it usually is only a partial response, and often is an acknowledgment of the problem she raised, but that the response does not propose any solutions.

21Recently, the Society has offered to enrol the Applicant in a pilot project for families where there are high levels of parental conflict, and the Applicant has agreed to participate in this pilot project.

22A number of times during her testimony, the Applicant stated that she has requested a new Worker from the Society. This topic was not discussed at the March 11, 2014 meeting, and was first raised by the Applicant over the summer of 2014. The Applicant testified that the Worker’s response was that this would not happen while the matter was active with the Board. She also informed the Board that it was her clear understanding from the Worker that this issue would be re-visited after the current matter before the Board is wrapped up. The Worker, in his testimony, confirmed that his Service Manager wanted to delay any decision regarding a change of Worker during the proceedings before the Board. The Worker certainly said nothing in his testimony that would indicate that the Society would not be open to changing the Worker.

23An outstanding issue that needs further discussion between the Society and the Applicant is her expectation of the role she would like the Society to play in facilitating visits for her with her children when the father of the children is resistant. As well, the Applicant is unclear as to what is expected of her to make it possible to move from supervised to unsupervised visits. This needs further discussion and clarification between the Society and the Applicant.

24With regards to the requirement in the Act that recipients of service be given the opportunity to be heard, and then to be given reasons for the Society’s decisions made in response to what the Society has heard from the Applicant, the Board described in P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 at paragraphs 13-14, the purpose of s.68.1(4) and (5) as follows:

The obligations under s. 68.1(4)4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to, or accept decisions.

To be heard involves active listening, discussions, the society’s taking steps to address the applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.

25To meet the statutory obligation reasons must be timely and detailed and the Applicant must be given sufficient information to understand what factors were considered in making a decision and why.

26The Applicant on a number of occasions in her testimony expressed a need for an improved relationship with the Society. She has strong concerns for the health and safety of her two children. She has not been given much opportunity to share in detail and in a meaningful way these concerns with the worker. The contact with the worker has been sparse. As well, e-mails are not a very useful means for a dialogue on issues of concern such as the Applicant is expressing, and for getting feedback from the Society as to what it is doing in response to these concerns. If the concerns are truly misplaced, the worker has not managed to make her understand that corrective action has been taken by the children’s father. The opening sentence of her application to the Board reads “I have asked the family worker to work with me.” Repeatedly the Applicant makes reference to requesting contact from the worker, which frequently did not happen. When the Society took the time to have a full meeting with the Applicant on March 11, 2014, the results were very positive for both the Applicant and the Society. This type of active listening cannot be just a one-time event. It has not happened in the past year.

CONCLUSION

27The Board finds that the Society did not fully exercise its legislated responsibility to hear the Applicant, and to give her reasons on its decisions. This conclusion applies specifically to the time period specified by the Applicant at the Pre-Hearing, namely the time period following the March 11, 2014 meeting. It is this time period that is specified in the Applicant’s application to the Board. In complaint 1, the Board finds in favour of the Applicant. With regards to complaint 2, the Board finds that the fundamental request of the Applicant in this complaint is one of receiving a new Worker from the Society. She believes that the relationship between the Applicant and the Worker is very troubled; the Worker in his testimony did not contradict this viewpoint. The decision on keeping or changing the Worker is beyond the scope of the Board’s mandate, and the second complaint is therefore dismissed. However, the Board does note that there appears an openness on the part of the Society to consider such a move, now that this application has been dealt with by the Board.

ORDERS

28In line with the Society’s legislated obligations under s.68.1(4) and (5) of the Act, the Board orders the Society to arrange for a substantial meeting between the Applicant and the relevant staff of the Society to provide an opportunity to the Applicant to be fully heard in a fulsome manner by the Society, in a direct face-to-face meeting. The Board notes the success of the March 11, 2014 meeting, and the failure of the Society in the twelve months since then to hear the Applicant’s concerns in a comprehensive manner. The Board orders that the setting of a date for such a meeting occur within 30 calendar days of the Society’s receipt of this order, and that a date satisfactory to both the Applicant and to the Society be set as soon as possible. In the event that the Society decides to make a change in the Worker assigned to the Applicant, the reference to 30 calendar days in the previous sentence is changed to 45 calendar days.

29As well, after hearing the concerns of the Applicant in the above-referenced meeting, any decisions flowing from the meeting will be accompanied by reasons, as required by the relevant section of the Act.

CONFIDENTIALITY ORDER

30The hearing was conducted in private and was not open to the public. Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss 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 purpose outside of the Board’s proceedings.

JOHN F. SPEKKENS _____________________

John F. Spekkens

Presiding Board Member