N.G. v. Highland Shores Children’s Aid Society, 2016 CFSRB 8

N.G. v. Highland Shores Children’s Aid Society

REASONS FOR DECISION

Date: March 1, 2016

Citation: 2016 CFSRB 8

Indexed as: N.G. v. Highland Shores Children’s Aid Society

(CFSA s.68)

INTRODUCTION

1The Applicant filed an application with the Child and Family Services Review Board (the “Board”) on November 27, 2015, pursuant to sections 68.1(4)4 and 68.1(4)5 of the Child and Family Services Act, R.S.O. 1990 c.C.11, as amended (the “Act”), regarding a matter relating to services sought or received from the Highland Shores Children’s Aid Society (the “Society”).

2The Applicant alleges that the Society has not listened to his service concerns or heard him when decisions were made regarding his son and has not provided him with reasons for decisions that affected his interests during the period of September 25, 2015 to the time of his application on November 27, 2015.

3The Applicant’s specific complaints were clarified during a pre-hearing teleconference on January 20, 2016, and consist of the following allegations:

1. The worker, [ ], coached the Applicant’s son to say things to the Applicant during a telephone conversation between the Applicant and his son;

2. The Applicant’s son had access to e-mails between the Applicant and the child’s mother who is the custodial parent and that these e-mails were not appropriate for the child to have seen;

3. The Applicant complained to the Society about these matters and it never investigated them; and

4. The worker’s supervisor, [ ], was complicit in the incident related to #1.

4The Society stated that it had given the Applicant every opportunity to be heard and that they have heard his concerns. It argued that the Applicant had not been prepared to accept any information about the reasons for the decisions that had been made. On the basis of these arguments, the Society asked that the complaint be dismissed.

5An oral hearing in this matter was held on February 17 and 18, 2016 in Toronto. The focus of the hearing was the four issues listed in paragraph [3] above.

6Based on the evidence of both the worker and the supervisor, the Applicant’s allegations regarding the worker’s coaching of his son and the supervisor’s alleged complicity have not been proven and are therefore dismissed.

7The Society offered no proof that it had fully looked into and considered the implications of the Applicant’s allegations about the child’s access to inappropriate e-mails sent by the Applicant to the custodial parent. Therefore, this allegation is upheld.

8Further, it is clear that the Society did not, in fact, communicate appropriately and adequately with the Applicant in response to his expressed concerns. In their evidence, the worker and her supervisor both agreed, when directly questioned about this matter, that their past communications with the Applicant had been limited and less than adequate. This was in direct contradiction of the Society’s opening statement, referred to in paragraph [4], that the Applicant had been unprepared to accept their communications. In spite of the reasons offered, i.e., the inappropriate terminology used by the Applicant in his communications with the Society, the Board finds that the Society failed in its obligations to communicate with the non-custodial parent in response to his expressed concerns and in contravention of their mandated obligations.

BACKGROUND INFORMATION

9The Applicant is the father of the child, who was born in 2004. Following the parents’ divorce, the mother was granted custody of the child.

10The Society first became involved in the case in 2007, following a complaint by the Applicant. Since then, the file has been reopened repeatedly, on the basis of complaints from both parents.

11In 2010, a restraining order was issued by the court for a period of 10 years, which prevents the Applicant from entering the city where the child now lives with his mother and step-father. The Applicant has regular access on specified weekends, when the child visits him.

12The Applicant, who, by his own admission, is an aggressive and abrasive man and who frequently uses inappropriate and offensive language, hopes to acquire custody of his son during the coming year, once the child turns 12 years of age. He stated that this application was launched in part to assist with his application for a change in custody. He stated that his son would like to live with him. This information was countered by the worker in her evidence. However, since the Board is not considering the matter of custody or access in this application, this information is not relevant to the decision.

THE EVIDENCE

13The Board heard testimony from the Applicant, the worker and the supervisor from the Society.

The Applicant’s evidence

14The Applicant entered into evidence an e-mail exchange between himself and the custodial parent dated September 26, 2015, as well as an audio-recording of part of a telephone conversation on September 25, 2015, between himself, the child and the step-father. The recording was barely audible and had not been transcribed.

15On Thursday, September 24, 2015, the child called the Applicant by telephone to say that he did not wish to visit the Applicant that coming weekend, although it was the child’s birthday and it was a scheduled weekend visit.

16The telephone conversation was quite brief and the Applicant said that he would call back. During this brief call, the child made reference to the fact that he was bothered by the Applicant calling the child’s mother “bad names” in his e-mail communications.

17The Applicant returned the phone call later that evening and spoke with his son and with the step-father. The son apparently confirmed that he did not want to visit the Applicant that weekend. In the exchange with the step-father, the Applicant alleged that the step-father had been responsible for coaching the boy to say these things to the Applicant.

18On the following morning, on Friday, September 25, 2015, the child called the Applicant to apologize for the previous telephone conversation and agreed to visit the Applicant after all.

19In the e-mail exchange entered into evidence, dated September 26, 2015, the child’s mother wrote to the Applicant that the CAS worker was present when the child made the telephone call to his father and the call “was their idea”. The word “their” in this e-mail referred to the CAS worker present at the time of the telephone call from the child to the Applicant.

The Society’s evidence

20The Society’s evidence consisted of the testimony of the worker and the supervisor. In addition, in the response to the Application, the Society disclosed excerpts from the Case File, which included transcripts of the Applicant’s voicemail messages and e-mail message prepared by the worker.

21The worker confirmed that on September 24, 2015, she had a conversation with the child about the fact that he did not want to go to his father’s that weekend and encouraged the boy to tell his father how he felt. She stated that her visit to the house was her routine visit and she was not there for any specific purpose. She denied that her involvement could be called coaching, although she said that she perhaps suggested “words” to use. She stated that she left before the Applicant called back and was not present for the rest of the telephone conversation.

22On October 6, 2015, the Applicant called the Society and left several quite offensive and inappropriate telephone messages regarding the dual issues of the alleged coaching and his concerns about his son being allowed to view his e-mails to his former wife. The supervisor stated that she, rather than the worker, attempted to call the Applicant by telephone, but did not reach him. When she eventually left a voicemail message, he did not call back. There was no further communication from the Society to the Applicant at this time.

23On November 6, 2015, there were further similar telephone messages and an e-mail from the Applicant to the Society. The supervisor once again attempted to call the Applicant, but apparently did not reach him. Thus, there was no Society response to these telephone calls and e-mail.

24All participants at the hearing confirmed that the day of the hearing was the first time that the Applicant met the worker and her supervisor.

ANALYSIS

25The Board has authority to determine if the Applicant was heard when he raised service concerns with the Society, and when decisions were made that affected his interests. The Board also has the authority to determine if the Applicant received reasons for decisions made that affect his interests.

26The Board’s authority and the Society’s obligations are found in the following sections of the Act:

1.(1) The paramount purpose of this Act is to promote the best interests, protection and wellbeing of children.

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and wellbeing of children, are:

3. To recognize that children’s services should be provided in a manner that,

iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.

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(4) The following matters may be 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.

27In 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.

28The “right to reasons” under the Act, 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 at para.13, 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.

REGARDING THE APPLICANT’S ALLEGATIONS

The allegation that the worker coached the child and the supervisor’s alleged complicity

29The worker confirmed that she had discussed with the child the matter of his reluctance to visit his father the following weekend; that she suggested words that the child might use in speaking to his father; and that she was present for the first telephone conversation.

30The worker and her supervisor both stated that helping the child to communicate how he felt is an appropriate part of a child protection worker’s mandate. I am inclined to agree with this and do not accept the allegation that this was “coaching” in the negative context implied by the Applicant. I accept that the worker was only trying to assist the child in expressing something that he had indicated that he felt.

31However, having received the Applicant’s concerns regarding this, however inappropriately and offensively this was expressed, the Society should have ensured that a written acknowledgement of the concern and an explanation of the follow up action taken by the Society, if any, was sent to the Applicant by e-mail or regular mail.

32Counsel for the Society focused on the fact that workers are entitled to a safe working environment and should not have to put up with offensive telephone messages and e-mails. He stressed that this is guaranteed under the Occupational Health and Safety Act and that, in this instance, the two pieces of legislation collide. I agree that workers should not have to put up with an unsafe working environment, but since, as mentioned above, the Applicant never visited the Society’s premises and never met its staff, the worker and/or supervisor could have responded in writing without in any way feeling threatened.

The allegation regarding the child seeing inappropriate e-mails

33There is no dispute that the child had seen such e-mails. It was not clear from the evidence of the witnesses whether the child had seen these e-mails on his father’s computer when visiting the Applicant and/or saw them or was shown them by his mother. I heard testimony from both Society witnesses that this matter was apparently discussed by the worker with the custodial parent and she was advised to take the necessary steps to prevent a repetition. The case notes submitted by the Society do not record this information about the advice given to the custodial parent.

34The Society apparently determined that the matter of these e-mails is not a child protection issue, although the Society indicated that it could become a child protection issue, if appropriate preventative and corrective steps were not taken by the parents. I accept their determination, but noted that the case notes do not include this determination. Further, I note that this determination and the reasons for it were also not communicated to the Applicant. In spite of his expressed concerns.

The allegation regarding the Society not investigating the Applicant’s complaints and not responding to the Applicant on its findings

35There was no explicit evidence presented by the Society that it looked into any of the Applicant’s allegations. The argument that the allegations did not focus on child protection issues and therefore did not call for an investigation per se, is not, in my opinion, acceptable. The Society has an obligation to hear concerns from parents and be responsive to these in accordance to section 2(2) a of the Act.

36Further, the obvious lack of communication in the past between the Applicant and the Society, for whatever reason, supports the Applicant’s allegations in this regard.

37The Applicant, by his own admission, is aggressive and abrasive. He is also explicit about his goal of getting custody of his son and he stated that he is prepared to do whatever it takes to achieve this.

38While clearly the Society needs to focus first and foremost on the best interests of the child, taking the approach that the problem is exclusively with the non-custodial parent is not helpful in the long run. Both parties must improve their way of communicating with one another.

39As for the statement that the Applicant is a difficult non-custodial parent and the Society communicates regularly and successfully with the custodial parent and her current spouse, this does not relieve the Society from its mandated obligations. The Board, in H.P. v. Brant Family and Children’s Services, 2014 CFSRB 71 at paras 17-19 found that a non-custodial parent is entitled to receive information from the Society directly:

Even though the Applicant is not the custodial parent, he is involved with his children, and his expressions of concern about his children’s whereabouts and welfare after their mother’s arrest were not addressed by the Society.

During this stage of the Society’s investigation, the Board finds that frequently the Applicant was not given an explanation or reasons on a variety of issues as they arose. At the hearing, the Society tendered evidence that they chose not to provide information to the Applicant because: (1) this disclosure would have violated the Mother’s right to privacy and came from her file; and, (2) the Mother had sole custody, while the Applicant was an access parent. However, section 20(5) of the Children’s Law Reform Act, states that:

The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

CONCLUSION

40The Applicant’s allegations regarding the coaching of the child by the worker and the supervisor’s complicity in this coaching are dismissed.

41The Applicant’s allegations and concerns regarding the child’s access to the e-mails sent to the custodial parent by the Applicant and the lack of appropriate follow up activities by the Society are accepted.

42The Board finds that the Society failed to provide the Applicant with the requisite opportunity to be heard and to be informed of the decisions made regarding his concerns. Section 2(2) a of the Act mandates that a Society provide services in a manner that includes the participation of both parents, not just the custodial parent. The Society’s reaction to the manner and/or behaviour of a parent does not justify the exclusion of that parent. Therefore, the Applicant’s allegations regarding this matter are upheld.

43The Board orders the Society that, in accordance with the Act and Regulations, it provide the Applicant within twenty days of receiving this decision with a written explanation of and reasons for their follow up actions regarding the Applicant’s complaints about the child’s access to the e-mail communication between the parents.

44I was pleased to be informed as part of the parties’ closing statements that the Applicant, the worker and the supervisor took the opportunity after the adjournment of the first day of hearing to discuss and agree upon how their future communication can be changed and improved in the best interests of the child.

CONFIDENTIALITY ORDER

45Pursuant 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.