J.S. v. Sarnia-Lambton Children’s Aid Society, 2015 CFSRB 52

CHILD AND FAMILY SERVICES REVIEW BOARD

J.S.

v.

Sarnia-Lambton Children’s Aid Society

REASONS FOR DECISION

Date: November 16, 2015

Citation: 2015 CFSRB 52

Indexed as: J.S. v. Sarnia-Lambton Children’s Aid Society

(CFSA s.68)

INTRODUCTION

1J. S., the Applicant (the “Applicant”), filed an Application pursuant to section 68(5) of the Child and Family Services Act, R.S.O., 1990, c.C.11, as amended, (the “Act”) on June 29, 2015. The Application was in regards to the Internal Complaints Review Panel (the “ICRP”) process conducted by the Sarnia-Lambton Children’s Aid Society (the “Society”) on May 27, 2015 and the summary of the ICRP outlined in a letter dated June 12, 2015.

2Following the Pre-Hearing teleconference held on September 8, 2015, the Board determined that the issues to be decided were whether the Society heard the Applicant and provided him with reasons about the following concerns all of which had been raised in the ICRP:

A) Supervised Access – why supervised when court and voice recordings from Society workers said unsupervised;

B) Official explanation of redacted copy of emails;

C) Children’s rights violated;

D) File disclosures;

E) December 9, 2013 supervision note stated we would encourage the mother to get custody of the children and the Applicant would be the access parent;

F) Society’s obligation to advise the Applicant’s children of their rights as [Country] citizens;

G) Delay in SKYPE visits with his children;

H) Email contact with Society terminated; Society never used the 1-800 number that was established for contact purposes;

I) Access visit for December 31, 2014 to January 1, 2015.

3The hearing was held on October 27, 2015. The Applicant was not represented by legal counsel.

4The Board’s reasons for this decision and its orders follow.

BACKGROUND

5The Applicant filed an earlier application complaining about the ICRP process in 2014. The Board issued its decision with respect to these complaints on December 29, 2014. None of the background facts relevant to this application differ from the background facts described in the earlier decision at paragraphs 5 - 10 and therefore, they will not be repeated here. In the earlier decision, at paragraph 22, the Society agreed that the Applicant’s October 2014 complaint had not been processed in a timely manner. This application arises out of that complaint and the Applicant’s concerns about the ICRP that was held on May 27, 2015 to deal with his complaint.

6The Applicant was not satisfied with the outcome of the ICRP process and applied to the Board.

7The following analysis is based on a review of the summary letter dated June 12, 2015 prepared by the ICRP and the Applicant’s oral and written submissions during the hearing as well as documents submitted into evidence in the course of his testimony that included e-mails, case notes, letters and orders relating to his case and involvement with the Society. The Applicant read his written submission as his account of the arguments he put forward at the ICRP. His testimony included references to a variety of legal standards and documents in the public domain that he relied upon in putting his arguments to the Society and to the Board.

ANALYSIS

8The Board has the authority to determine if the Society complied with the regulations regarding the ICRP process, whether the Applicant was heard when he raised concerns about the Society during the ICRP process and whether he was given reasons for decisions made in the course of the ICRP process.

9The Board’s authority and the Society’s obligations relating to the ICRP process are found in the following sections of the Act:

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.

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) including the following matters:

3. Allegations that the society has failed to comply with clause 2(2)(a) of the Act, which states:

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; and,

1. Allegations that the society has failed to provide the complainant

with reasons for a decision that affects the complainant’s interests.

10In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 at paras. 13-14, the Board described the purpose of s.68.1(4) and (5) and addressed s. 68.1(4).4 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.

11With 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. In S.V.D. and M.V.D. v Stormont, Dundas and Glengarry, 2015 CFSRB 47 at paragraph 21, the Board specifically considered 68.1(4) 5 as follows:

(…) By extension, the reasons for any decision need to take into account challenges to the validity of a society’s reasons that may be posed by a complainant in order to fully meet the test of being sufficient. ……..

12The applicant does not complain about the ICRP process. Rather, his Application related to whether the ICRP met its obligation to hear him and provide him with written reasons or explanations regarding the issues before it.

Issue A: Supervised Access – why supervised when court and voice recordings from Society workers said unsupervised

13This was an issue for the Applicant because in his view the Society was inconsistent in its communications with him regarding access and inconsistent with a court order which placed no restrictions on him.

14The ICRP’s written response states:

Our review found that the position of the Society was for you to have unsupervised access with your children and we provided that position in court the day you referred to in your correspondence. While you were in agreement with this position, [the Mother] and her counsel were not consenting to your access being unsupervised, and therefore the matter could not proceed on consent. The access would then continue as per the order that was in effect at that time and that was to have your access to your children supervised.

15In the Board’s view, this written response fails to state what the Society’s position was regarding access at various points in time and its reasons for its position at each decision point. If the ICRP was unable to verify the Applicant’s position that the Society had changed its position, it had an obligation to inform him of this. The Board believes that the Society’s written reasons need to reflect that it heard the Applicant’s position on the issue and that it took steps to verify what occurred. The written reasons should provide the details gleaned from a review of its records that relate to the issue in order to meet the test of sufficiency.

Issue B: Official explanation of redacted copy of e-mails

16The ICRP provided the following written response to this issue:

The blacked out parts in emails – for example, October 23, 2014 between the [Mother] and [Society counsel] – were blacked out as part of the Solicitor-Client privilege.

17The Applicant took the position that a claim of solicitor-client privilege could not be raised because a Society worker had colluded with the Mother in her abduction of his children and this amounted to communication in furtherance of a crime. The Applicant also argued that the Society failed to base its actions on information that it had that pertained to the Applicant’s rights regarding the children. In his view, in failing to take these into account, the Society’s actions were illegal and therefore the privilege did not apply.

18The Applicant also pointed out in his testimony that the Society was inconsistent in redacting identifying information, e.g., in one instance information had been redacted but further along in the document, the same type of information had not been and there was no explanation provided by the ICRP for these inconsistencies.

19The written response from the Society is lacking in sufficient detail to meet the test as a full, meaningful and reasonable response. It fails to provide details related to what information the ICRP reviewed including documents, policies that relate to the redaction of information, any exceptions to those rules such as those suggested by the Applicant and any acknowledgement that in the course of its review, inconsistencies were identified. Where information was redacted the Society was required to identify the reason for the redaction and the type of information redacted. The written response from the ICRP fails to respond to the Applicant’s suggestion that solicitor-client privilege was not applicable in these circumstances and making a clear statement that it did not agree that the conduct of the staff was criminal.

Issue C: Children’s rights violated

20The ICRP provided the following written response to this issue:

There were a number of “parts” to the third question and our consultation with … Senior Legal Counsel was that the CAS did have the right and obligation to interview your children as they were in [city] Ontario. It was the position of the CAS that we did have the legal and statutory authority to speak to your children.

21The Applicant’s contention was that although the Society may have had an obligation to speak to the children, it did not have the right to do so without his consent and without having involved the [Country] consulate given that his children are [Country] citizens. The Applicant cited a number of sources to support his contention.

22The written response from the ICRP regarding this issue did not provide details regarding what the Society’s authority to speak with the children was based upon and why that authority might override the sources of authority referred to by the Applicant. It was not sufficient to state that the Society’s legal advisor said it had the right to do so without providing the legal basis for that authority within the context of the objections raised by the Applicant.

Issue D: File disclosures

23This was a wide-ranging issue for the Applicant. He had been given various and conflicting information at different times regarding how to access his file and the children’s files as well as what information he was entitled to. He had received some of the files but, in his view, not all of them despite the Board’s order cited in an earlier paragraph that he be given his entire file. The Applicant was particularly concerned about missing documents in the file such as a copy of the referral made to another agency to provide counselling for his children without his consent. He was also concerned about a situation in which a decision had been made at one point regarding dates for camp for the children that were subsequently changed.

24The ICRP provided the following written response to this issue:

The information that the CAS told you that a court order was needed to access your children’s school records may present as a bit confusing. The March 25, 2013 case note from [the worker] does say that you asked about report cards and [the worker] advised that she did not have that information and that you should request that in court. Our understanding was that asking for “this in court” was meant that all parties would be there and to indicate your intention to see this school information, not that the CAS indicated that you needed to get an “Order” to have the records produced. The December 4, 2013 supervision note sets out that you are asking for school and counselling records and you are entitled to these and can ask for them. If this was misunderstood, we apologize.

The children attending camp is a program that is facilitated through the CAS and we made an internal referral to the Camp Coordinator to set up the camp times for the children. The camp dates are selected, however, may change from time to time depending on the wishes of the family.

The referral to [community agency] is attached to this letter for your review.

25The response from the ICRP fails to confirm the Applicant had been provided with the entire file as had been ordered or address the Applicant’s contention that parts of the file were still missing. It makes no reference to a detailed and clear statement regarding the Society’s policy and practices related to disclosure of records and how it has complied with these. It is also silent on the concern related to the Society’s failure to obtain the Applicant’s consent for the referral to the community agency or involve him in the decision related to a change in camp dates when he had been a party to the original decision related to camp dates.

26The serious concern the Applicant expressed regarding this issue was not reflected in the response that the ICRP provided and does not reflect that he was heard in that regard. This could have been remedied by a simple statement of acknowledgement in writing conveying a clear message to the Applicant that the issue of disclosure and related matters had been an ongoing and significant concern to him as a parent.

Issue E: December 9, 2013 supervision note stated we would encourage the mother to get custody of the children and the Applicant would be the access parent

27The ICRP provided the following written response to this issue:

With respect to the Supervision Case Note of December 4, 2013 that stated “Need to start encouraging mom to obtain full custody order of the children with access to be determined to dad” [the worker] is no longer employed by the CAS.

The statement taken by itself may present as concerning and that reading this could be upsetting. [Another worker] advised that she did not have any conversation with [the worker] and a closing resolution for all CAS matters is to return children to the parent who had charge of the children prior to the intervention. In this case, this would be your joint custody order.

28The Applicant testified that this was not the only example of the bias against him that he perceived to be evident from the worker cited in the preceding quote as well as other Society workers. The Applicant believed that the Society was treating him in a discriminatory and biased manner as compared to how they were treating the Mother of his children.

29The written response from the ICRP acknowledged that the Applicant might be concerned about such a statement made by a worker and might be upset about it. However, the underlined section of the written response above indicates that the ICRP failed to hear that this indeed was what he felt and that such an alleged statement by any worker was unprofessional, inappropriate and insensitive with regard to the rights, wishes and role of the other parent involved. It is also silent on the Society’s general expectations with regard to the professional conduct of its staff, ongoing training and supervision in this regard and the role of progressive discipline in meeting these expectations.

30The written response does validate the Applicant’s joint custodial involvement with the children.

Issue F: Society’s obligation to advise the Applicant’s children of their rights as [Country] citizens

31The Applicant believed that his children’s rights under the United Nations Convention of the Child and the Canadian Charter of Rights and Freedoms among others were violated and that they should not have been interviewed without the written consent of their parents and access to counsel and [Country] consulate representation. The Applicant questioned the Society’s obligations to advise his children about their rights particularly as [Country] citizens.

32The ICRP provided the following written response to this issue:

The March 27, 2013 supervision case note between [the workers] relating to your children being interviewed by Police and by CAS worker …. was highlighted by you as you believe we did not advise the children of their rights or that we did not request that [Country] Consulate Member be present or offered. Consultation with ….. Senior Legal Counsel noted that the Society was within the Statutory obligation to speak to your children. [The Mother] brought the children to the Police Station and allowed the CAS access to her home for the interviews to be completed.

33The Board’s view of the ICRP’s response to this issue is similar to its view stated with regard to Issue C. In addition, the written response to Issue F is silent on the point regarding the Society’s obligation to inform the children of their rights. A fulsome and meaningful written response would have included a clear written outline regarding the children’s rights in the area being questioned, where those rights stem from, the Society’s policy in this regard and the details related to any actions that the Society may have taken to ensure that the children’s rights were dealt with accordingly. It would also have included a clear statement regarding the involvement of parents in this regard.

Issue G: Delay in SKYPE visits with his children

34The Applicant was concerned that it took six to eight weeks to get Skype visits in place with his children. Once the Skype visits were initiated and as a result of a device connected to the children’s Mother’s computer, the Applicant identified a number of concerns to the Society. These included the state of the Mother’s home and her behaviour such as yelling and swearing. The Applicant shared video footage that showed the home and the Mother and alleged that the Society failed to investigate these allegations.

35The ICRP provided the following written response to this issue:

The information that you provided via a video link for the Society to review regarding your concerns about your children with [the Mother] and the children. [The worker] advised that she did address the allegations and met with [the Mother] and discussed the concerns; however was not able to view the video link.

36The Applicant testified that the technology to view the video was available in light of the fact that if Society workers can access yahoo.ca or google.com then they can access the web server. The written response from the ICRP is silent on the limits of workers’ access to the internet on Society computers.

37The Applicant also questioned the validity of the statement provided by the ICRP regarding an investigation into his allegations given that the case notes do not support it. The ICRP’s written response is lacking in detail regarding the investigation itself and also statements that could be assuring to the Applicant that the Society did not verify through the course of its investigation that his children were at risk. The written response from the ICRP is silent on the matter relating to the delay in initiating the Skype visits.

Issue H: Email contact with Society terminated and Society never used the 1-800 number that was established for contact purposes

38The Applicant testified that the Society had requested that his contact with them be by phone despite the fact that he was living in a different time zone. The Applicant set up a 1-800 number to facilitate communication with the Society. The Society never contacted him at this number.

39The ICRP provided the following written response to this issue:

With respect to the 1-800 number that you set up for contact. In discussion with [the worker], she advised that she likely did not contact that number.

40The written response from the ICRP does confirm that the Society did not use the number established to facilitate communication but does not provide any reasons why that was the case. It is silent however on the issue of communication more generally speaking and in particular on the importance of communication. It also does not reflect its review of the history of communication in this case and any concerns or actions taken by the Society to address them that relate to it.

Issue I: Access visit for December 31, 2014 to January 1, 2015

41The Applicant submitted a request for an overnight access visit with one of his children for December 31, 2014 so the child could attend a family wedding and also celebrate the child’s birthday. He submitted the request more than 30 days in advance of the date and the worker did not get back to him until December 23 to advise him that he could not have access because the Mother had already made plans. The Applicant testified that the plans the Mother made were after he had submitted his request and the Society supported the Mother’s plan despite this.

42The ICRP provided the following written response to this issue:

With respect to your request for overnight visit with [the child], in discussion with [the worker] she acknowledged that she received your contact and request. [The worker] advised that within a day or two she also received information from [the Mother] of the children that [they] were plans on or around the same time period. [The worker] had a planned meeting with [the Mother] for about 10 days later and she believed she could best discuss the plans with [the Mother] at that time in order to reach, perhaps, some common ground for the access with [the child].

43The Applicant provided the details for this request in an e-mail to his worker dated November 28, 2015 and indicated that he needed to have a response by December 8, 2015 for planning purposes. On December 11, 2014, a service manager from the Society wrote an e-mail to the Applicant and requested that he remind her of the time and plans for the wedding and as a follow-up to a discussion on December 8, 2014, there is mention of the worker exploring this request further. The Applicant still had not heard anything from the worker or the service manager by December 18, 2014 and he notes that in an e-mail on the same date and requests a follow-up response. The Applicant came to learn through his children on December 22, 2014 during one of their Skype visits that his son would not be attending the wedding on December 31 nor sleeping over. He had yet to hear from the Society as of December 23, 2014 despite his repeated efforts to obtain a response from them in a timely fashion.

44The e-mail chain is not clear with respect to when discussions with the Mother may have occurred regarding a competing request and the details of the outcome of those discussions. In any event, the reply from the ICRP does not reference the efforts made by the Applicant to seek a response to his request for the plan proposed, the impact the delays may have had on him, the details related to processing the request with the Mother, nor any protocols used to determine priorities in such a situation.

ORDERS

45Section 68(10) of the Act empowers the Board to make orders 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;

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.

Issue A

46The Society is ordered to provide to the Applicant in writing an outline of the chronology of its position regarding his access to the children at any decision points and the reasons for its position including any changes at each of these decision points. The written explanation should include reference to any Society documents that relate to this matter including case notes, letters, and orders. The written explanation should allow the Applicant or any reader to understand all of the grounds for and reasoning related to the exercise of the Society’s discretion in making decisions related to the Applicant’s access at any point in time.

Issues B and D

47The Society is ordered to:

1. Provide the Applicant with a copy of his entire file including the children’s files. Information which would identify third parties or for which privilege is claimed may be redacted but the Society must identify the basis on which each redaction is made and the type of information redacted. If the Applicant objects to the Society’s claim of solicitor-client privilege the Society will respond in writing explaining its position. If the Society has already provided the entire file redacted as ordered by the Board, to confirm in writing to the Applicant that that is the case. If the file was provided but not redacted as ordered by the Board, then the Society is ordered to provide another copy of the file redacted as ordered.

2. Provide the Applicant with a copy of its policies and practices relating to disclosure; and,

3. Provide a written explanation to the Applicant of the Society’s policy and practices regarding obtaining the Applicant’s consent to treatment involving his children and consent regarding activities planned for his children and changes in those plans. This explanation should also include reference to any relevant statutes.

Issues C and F

48The Society is ordered to:

1. Provide the Applicant with a written explanation of the Society’s legal basis for interviewing the children including reference to Society policies and any relevant statutes;

2. Provide the Applicant with the Society’s written policy on informing children of their rights, the legal basis for the policy and the actions taken by the Society to protect the Applicant’s children’s rights;

3. Provide the Applicant with the Society’s written policy or practices regarding the involvement of parents in the process of informing children of their rights, the legal basis for its policy or practice including reference to relevant statutes;

4. These written explanations should address the Applicant’s objections based on the legal authorities cited by the Applicant.

Issue E

49The Board orders the Society to provide in writing to the Applicant any official statements in Society policy or other documents that reflect its position with respect to the treatment of its clients and the professional conduct of its staff.

Issue G

50The Society is ordered to:

1. Provide to the Applicant in writing an explanation for the delay in Skype visits;

2. Provide to the Applicant in writing the steps that it took to investigate the Applicant’s allegations related to the condition of the Mother’s home and her behaviour and the outcome of its investigation; this written explanation should include reference to Society standards, policies and practices that relate to the conduct of investigations as well as any records created to substantiate the Society’s activities related to the investigation of this matter;

3. Provide to the Applicant in writing the reasons why it would not be possible for staff to view the video referenced by the Applicant.

Issue H

51The Board orders the Society to provide to the Applicant in writing an explanation of why the 1-800 number had not been used in light of the Applicant’s position that the Society had directed that it was to be the means by which communication between the Society and the Applicant was to take place. This written explanation should include the details related to the reasons why this arrangement was put into place and any records created to substantiate the Society’s activities related to this matter.

Issue I

52The Board orders the Society to provide to the Applicant in writing an explanation of the steps and dates in the process that led to the decision to not approve the Applicant’s request for his son made on November 28, 2014 and the reasons for the decision. This written explanation should include reference to any policies or practices that relate to such a request under similar circumstances and any records created by the Society to substantiate the Society’s activities related to this matter.

53The Board orders that the Society implement the above orders within 45 working days after receiving these reasons.

CONFIDENTIALITY ORDER

54Pursuant 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, except with an order of the Court or the Board, as appropriate.

GAIL GONDA _____________________

Gail Gonda

Presiding Board Member