DC v. Durham Children's Aid Society, 2018 CFSRB 5

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

DC

Applicant

-and-

DURHAM CHILDREN’S AID SOCIETY

Respondent

DECISION

Adjudicators: John F. Spekkens, Michele O’Connor, D. John Hamilton

Date: March 27, 2018

Citation: 2018 CFSRB 5

Indexed as: DC v Durham Children’s Aid Society

APPEARANCES

DC, Applicant

Self-represented

Durham Children’s Aid Society, Respondent

Alison McGregor, Counsel

INTRODUCTION

1This is an Application made under sections 68.1(4) and 68.1(5), of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (“the Act”)

2DC, the Applicant, filed an Application with the Child and Family Services Review Board (the “Board”) on July 17, 2017, against Durham Children’s Aid Society (“the Society”).

3A Pre-Hearing conference was held on January 22, 2018, at which time it was confirmed that the following complaints had been made by the Applicant:

a. The Society has failed to hear the Applicant’s concerns about the safety of his children due to the presence of an individual in the children’s home whom the Applicant believes has a history of committing sexual assaults. The Applicant raised his concerns with the Society in 2017.

b. The Society has failed to investigate the Applicant’s concerns about the safety of his children and has failed to explain to the Applicant the reason for its inaction.

4The Board must decide whether or not the Society heard the Applicant, and whether or not the Society gave to the Applicant, and explained to the Applicant, its reasons for its decision that affected his interests.

5For the reasons set out below, the Board finds that the Society failed to hear the Applicant and failed to provide and explain to him its reasons for its inaction concerning his complaint.

BACKGROUND

6The Applicant is the biological father of two children, 13 and 15 (the “children”). TC is the mother of the children.

7TC is also the mother of B, age 28. The Applicant is not the father of B.

8The Applicant and TC are involved in litigation in the Ontario Superior Court of Justice with regard to family law issues, including custody of, and access to, the children.

9At the time of the Society’s investigation, the children were residing with TC, together with B.

10On January 13, 2017, the Society received information from a detective at Durham Regional Police with regard to a disclosure made by A, also the Applicant’s child, concerning an historical sexual assault on her by B. B was charged with two counts of sexual assault.

11On January 23, 2017, the Applicant advised the team duty worker that B posed a sexual risk to the children.

12The Society investigated. A Society worker, MC, met privately with the children on February 3, 2017. The children individually confirmed that B had never touched them, and that they would inform TC if he did. On February 3, 2017, a safety plan was put in place whereby TC was to ensure that B was not left unsupervised with either of the children. Another worker, GV, had 5 private meetings with the children between March and July.

13The criminal charges against B were withdrawn on September 5, 2017.

14In a letter dated May 3, 2017 sent to counsel for TC and the Applicant, the Society advised that the concerns related to the children had not been verified, and that the Society had no protection concerns provided that the safety plan was maintained.

15On July 7, 2017, a Society worker left a voice mail on the Applicant’s cell phone advising that it was closing its file. This was confirmed by letter also dated July 7, 2017.

16The Applicant denied receiving any letters from the Society, although he acknowledged receiving the voice mail of July 7, 2017.

THE LAW

17The relevant provisions of the Act are:

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.

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

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

(e) dismiss the complaint; or

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

18In PO v Family and Children’s Services Niagara, 2012 CFSRB 33 at paragraphs 13-14, the Board described 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.

19In JG v Windsor Essex Children’s Aid Society, 2012, CFSRB 25, the Board held that:

The right to reasons is based on the principle that sufficient information, both factual and contextual, is required to understand decisions that were made. There is a link between the right to be heard and the right to reasons because having information helps people understand and this helps them participate meaningfully in discussions and ultimately helps in achieving acceptance of the decision.

ANALYSIS

Issue 1: The Society has failed to hear the Applicant’s concerns about the safety of his children

20Following the Applicant’s attendance at the Society’s office on January 23, 2017, the Society’s only direct contact with him was a single telephone conversation with Society worker, JP, on May 29, 2017, when he arrived at the Society’s office without a scheduled appointment. JP did not discuss the Society’s investigation with the Applicant, and he did not ask about it.

21The worker who had carriage of the file from September 12, 2016 until March 7, 2017, never spoke to the Applicant concerning the investigation as it was not completed during her time in charge of the file.

21The Applicant was told, in the Society’s May 3, 2017 letter, that the concerns about B were not verified. The letter did not contain any reasons. He was informed the file was closed by voice mail on July 7, 2017 and by letter of the same date. Again, he was not provided with reasons for the Society’s decision.

23The Applicant complains that decisions were made without input from him, and that he was never called in for a meeting. There is no dispute the Society did not attempt to meet with the Applicant to advise him of the results of its investigation or before closing its file.

24The Applicant acknowledges that he changed his home address in February 2017, and did not give the Society his new address. He believed the Society knew where to find him. The Applicant agreed he did not always answer his phone, or pick up voice mail messages promptly. The Applicant did not formally request a meeting but attended at the Society on occasion without an appointment.

25The Board finds that in failing to give the Society his current address, respond to phone messages or take steps to follow up with his concerns more formally, the Applicant bears some responsibility for the failure to be heard. However, given the seriousness of the alleged risk, the Board finds that the Society made no meaningful attempts to engage with the Applicant or to permit him to express his concerns and views on the Society’s investigation, and the results of the investigation. The Board finds that the Society failed to hear the Applicant’s concerns about his children.

26The Applicant testified at the hearing with regard to his concerns about his children. As a result, the Board makes no order at this time with regard to the Society’s failure to hear the Applicant.

Issue 2: The Society has failed to investigate the Applicant’s concerns about the safety of his children, and has failed to explain to the Applicant the reasons for its inaction

27In her evidence, Society worker JP confirmed the following:

a) The Society’s July 7, 2017 letter did not provide reasons to the Applicant for the conclusion that there was no risk to the children.

b) Apart from the call of May 18, 2017 between the Applicant and JP, which occurred as a result of the Applicant attending at the Society’s office without an appointment, there were no attempts to contact the Applicant after March 23, 2017, when the Society completed its investigation.

28The Board finds that the Society has failed to provide the Applicant with reasons for any of its decisions.

DECISION

29The Board orders that the Society is to provide, within 30 days, written reasons to the Applicant for its decision in finding that the concerns expressed by the Applicant concerning the safety of the children were not verified.

CONFIDENTIALITY ORDER

30Pursuant 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 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.