KR v. Children’s Aid Society of Hamilton, 2020 CFSRB 78

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

KR

Applicant

-and-

Children’s Aid Society of Hamilton

Respondent

DECISION

Adjudicator: Catherine Bickley Date: August 26, 2020 Citation: 2020 CFSRB 78 Indexed As: KR v Children’s Aid Society of Hamilton (CYFSA s.120)

APPEARANCES

KR, Applicant Self-represented

Children’s Aid Society of Hamilton, Respondent Ali Mirza, Counsel

Introduction

1This is an Application filed with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”). The CFSRB found the Application eligible to proceed to a hearing under sections 120(4)4 and 120(4)5 of the Act.

2Neither party complied with their disclosure and document filing obligations. As a result, the only documentary evidence before me is the Application, the Response and a June 5, 2019 letter from the Respondent to the Applicant which was entered on consent.

3I heard testimony from the Applicant and from two Respondent staff. The Respondent’s two witnesses adopted their detailed witness statements and provided supplementary oral testimony. The Respondent’s witnesses were RD (Intake Worker with carriage of the file from March 12 to June 6, 2019) and GSA (Family Service Worker with carriage of the file after June 6, 2019).

the law

4The relevant provisions of the Act are:

15(2) Service providers shall ensure that children and young persons and their parents have an opportunity 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;

s.120(4) The following matters may be reviewed by the Board under this section: (…)

4. Allegations that the society has failed to comply with section 15(2).

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

s.120(7) After reviewing the complaint, the Board may:

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

(e) dismiss the complaint.

background

5The Applicant is the father of a young son (VR) and daughter (SR). He is separated from their mother. There has been significant conflict between the parents regarding access.

6The Applicant’s primary complaint is about the Respondent’s response to injuries VR experienced while living with his mother in her parents’ home. The Applicant also complains Respondent staff discounted his concerns, limited the length of meetings, treated him less favourably than his ex-spouse and believed her negative statements about him. He also feels his son’s statements about maltreatment by the maternal family were not taken seriously.

The April 8, 2019 Injuries to the Applicant’s Son

7The Applicant and the Intake Worker provided different dates on which VR’s injuries happened. I prefer the Applicant’s evidence on this point as it is more consistent with the timing of the investigation by the police and the Respondent.

8On April 8, 2019, after picking VR up from the maternal grandparents’ home, the Applicant noticed bruises on his son’s forehead and on one ear. VR said his maternal grandfather had picked him up and thrown him. The Applicant reported the incident to the police.

9The following day, the Intake Worker made a referral to McMaster Hospital’s specialized Child Advocacy and Assessment Program (“CAAP”). The Intake Worker, the Applicant, his ex-spouse and VR all attended CAAP. The CAAP doctor confirmed injuries to VR’s ear and upper arm.

10The Applicant and his ex-spouse agreed VR would stay with the Applicant while SR stayed with her mother pending the outcome of the investigation into the cause of VR’s injuries. The Intake Worker told the parents the maternal grandfather must have no access to VR and no unsupervised care of SR until further notice.

11VR lived with the Applicant from April 8, 2019 until June 9, 2019. The events of June 9, 2019, described further below, resulted in VR living again in the maternal grandparents’ home.

The Respondent’s Verification Decision

12The police and the Respondent conducted a joint investigation. The police interviewed the Applicant, his ex-spouse, the maternal grandfather and other people residing in the maternal grandparents’ home. The Intake Worker took a statement from an individual to whom VR had made a disclosure about the maternal grandfather. She provided the statement to the police.

13On May 14, 2019. the investigating police officer advised the Intake Worker that there was insufficient evidence to lay criminal charges. That same day, the police officer and the Intake Worker jointly reviewed the outcome of the criminal investigation with the maternal family. The Intake Worker left it to the police officer to contact the Applicant with the results of the police investigation which he did on May 16, 2019.

14On May 27, 2019, the Intake Worker and her supervisor reviewed the available information and concluded VR had “sustained a concerning injury to his ear”. The Respondent verified “physical harm by an unknown maltreater” which was believed to have occurred in the maternal grandparents’ home but concluded there was insufficient evidence to verify physical harm to VR by the maternal grandfather.

Communication of the Verification Decision to the Applicant and his Ex-Spouse

15The Respondent wrote a letter to the Applicant, dated June 5, 2019, stating it had not verified that VR’s injuries were caused by the maternal grandfather and thus the maternal grandfather was no longer prohibited from contact with VR. The Applicant’s uncontradicted testimony is that he did not receive the letter until more than a month later.

16In contrast, the Applicant’s ex-spouse learned of the verification decision on Friday, June 7, 2019 when the Intake Worker responded to a message from her. The Intake Worker told her there was no longer a prohibition on the maternal grandfather having contact with VR. When asked why she did not also give this information to the Applicant, the Intake Worker responded, “I don’t believe I got a call from [the Applicant] at any point that day”.

The June 9, 2019 Park Incident and Follow-up

17On Sunday, June 9, 2019, the Applicant took VR to a park to meet his ex-spouse. He expected her to come alone. He testified that although she was by herself at first, after about five minutes members of her family, her significant other and her significant other’s mother arrived.

18The Applicant testified the group swarmed him. He was worried for his and his son’s safety. As far as he knew, the prohibition on the maternal grandfather having any contact with VR was still in place. He ran with his son and they both fell in the road. Members of the maternal family took his son from him. The Applicant hit his head while VR was being taken from him and his son hit his head while being placed into the maternal family’s vehicle. The Applicant’s description of the incident is consistent with the Intake Worker’s description of how the incident was reported to her by a police officer who observed the incident.

19When the Applicant called the Respondent’s After Hours Service that evening, he learned for the first time that the maternal grandfather was no longer prohibited from having contact with VR.

20The Intake Worker testified that a worker visited the maternal grandparents’ home the next day (June 10) and observed VR to be well. She also stated that a supervisor contacted the Applicant with an apology “as I had not had the chance to advise him that the plan had changed as far as the grandfather was concerned”.

21The Intake Worker and the Family Service Worker also met with the Applicant on June 14, 2019 to discuss the June 9, 2019 incident. Much of the discussion consisted of the Intake Worker’s criticism of the Applicant for running into the road.

22The Applicant and family members attended a meeting with Respondent staff, including two supervisors, after a July 2019 allegation that VR’s mother had choked him. The parties disagree about the length of the meeting. The Applicant says the meeting lasted only 15 or 20 minutes and then they were rushed out. The Respondent says the meeting lasted over an hour. The matter was referred to the police and did not result in any criminal charges. The Respondent did not verify harm to VR by his mother.

analysis

23The CFSRB’s jurisdiction in an application under sections 120(4)4 and 120(4)5 of the Act is limited to determining whether the Respondent has heard an applicant’s concerns and provided meaningful reasons for decisions that affect an applicant. The CFRSB does not have the authority to evaluate and make determinations about the substance of the Respondent’s decisions.

Section 120(4)4

24The CFSRB has explained the right to be heard under section 120(4)4 of the Act as follows:

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.

P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 (para 14)

25The Respondent submits it “afforded the Applicant ample opportunities to be heard”. The Respondent submits that it took the Applicant’s concerns about VR’s injuries seriously by contacting CAAP and by passing on information to the police.

26I find the Respondent heard the Applicant’s concerns regarding VR’s April 2019 injuries when it made a referral to McMaster Hospital’s specialized CAAP, forwarded additional information to the police and conducted a joint investigation with the police.

27I find, however, that Respondent staff inappropriately minimized the Applicant’s ongoing concerns about the safety of the maternal grandparents’ home. The Applicant argues that “It is clear there is someone in that house harmed my son. My children are not safe in that home because the same people that were in that household are [still] in that household.” Both the Intake Worker and the Family Service Worker persistently suggested, including at the hearing, that there may have been an alternate explanation for VR’s April 2019 injuries, such as falling into a piece of furniture. This testimony is inconsistent with the Respondent’s verification decision. The Respondent considered but ultimately rejected any alternate explanation and verified the injuries were caused by an “unknown maltreater”, i.e., by a person. Given this finding, it was inappropriate for Respondent staff to continue to suggest nobody in the maternal grandparents’ home caused VR’s injuries.

28Similarly, both Respondent witnesses testified “there was no evidence that the maternal grandfather” had harmed VR. Again, this is inconsistent with the Respondent’s verification decision, as set out in the June 5, 2019 letter, that there was “insufficient evidence” to support a finding against the maternal grandfather. No evidence and insufficient evidence are very different. This appears to be part of a persistent pattern of minimizing the Applicant’s concerns.

29The investigating police officer and the Intake Worker jointly reviewed the outcome of the police investigation with the Applicant’s ex-spouse’s family but the Intake Worker left it to the police officer to give this information to the Applicant. This understandably increased the Applicant’s perception that the Respondent was biased in favour of his ex-spouse.

30I also find the Respondent did not adequately hear the Applicant’s concerns regarding the June 9, 2019 park incident. The Intake Worker minimized the threat to the Applicant when he and his son were confronted by multiple people at the park. She blamed the Applicant for fleeing from a group that included the maternal grandfather who, to the Applicant’s knowledge, was not supposed to be near VR. The only follow up to this incident seems to have been the visit by a worker to the maternal grandparents’ home the following day.

31At the hearing, the Intake Worker took no responsibility for the unequal sharing of information about the verification decision. She seemed to blame the Applicant for her own failure to inform him of the change in conditions when she stated the reason she did not inform him was because he had not phoned her on June 7, 2019.

32The Applicant acknowledges he met with managers and supervisors but said he was not heard by them. He says meetings were rushed. The length of a meeting is not in itself determinative of whether an individual’s concerns have been heard.

33Given the Respondent made a referral to the police following the meeting concerning the choking allegation, I find it heard the Applicant’s concerns in that instance.

34For the reasons set out above, I find the Respondent heard the Applicant’s concerns in some instances but failed to hear or minimized his concerns in other instances.

Section 120(4)5

35The “right to reasons” under section 120(4)5 of the Act is a right to receive a meaningful explanation of decisions that affect one’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8, at para 13, the CFSRB held that:

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.

36Factors to be considered in assessing whether reasons are sufficient include the timeliness and level of detail provided: R.G. v. Children’s Aid Society of Toronto, 2020 CFSRB 10 at para 15.

37The Respondent claims the Applicant has “consistently and thoroughly” been advised of reasons for decisions through meetings with workers in his home, in the community and over the telephone. The Respondent relies on the June 5, 2019 letter which sets out the verification decision regarding VR’s April 2019 injuries as well as the lifting of restrictions on the maternal grandfather.

38In my view, the Respondent has not met its obligation to provide the Applicant with timely and meaningful reasons.

39The Applicant did not receive the June 5, 2019 letter until July 2019. The Respondent gave the Applicant’s ex-spouse important information about the verification decision and the accompanying lifting of restrictions on the maternal grandfather by telephone. It did not do the same for the Applicant.

40It is surprising that the Respondent did not communicate the verification decision to both parents by telephone. The lifting of restrictions on the maternal grandfather was important information for both parents. In any event, once the information had been given to the Applicant’s ex-spouse, it was incumbent on the Respondent to promptly provide the same information to the Applicant, particularly given the level of conflict between the parents. It was important for both parents to have a shared understanding of the situation with respect to the maternal grandfather.

41In the absence of this crucial information, it is understandable that the Applicant felt the need to leave the park with his son when they were approached by someone who he had been told should have no access to VR until further notice. Timely information from the Respondent could have avoided this unfortunate incident which resulted in both the Applicant and his son hitting their heads and aggravated the conflict between the Applicant and his ex-spouse.

42In her testimony, the Intake Worker seemed to blame the Applicant when she said she did not give him the information because he did not call her the day his ex-spouse called. This attempt to shift responsibility for the Respondent’s failure to promptly inform the Applicant is inappropriate.

43Even if the June 5, 2020 letter had been provided to the Applicant in a timely manner, I find it would have still fallen short of meeting the Respondent’s obligation to provide the Applicant with meaningful reasons for the verification decision.

44While the Intake Worker stressed in her testimony the possibility of an alternative explanation for VR’s injuries, there is no mention of this possibility in the June 5, 2020 letter. The bald statement “there was insufficient evidence” to verify that the maternal grandfather caused VR’s injuries is inadequate. The letter does not include any information about the factors taken into account by the Respondent in reaching the verification decision. As a result, the letter does not allow the Applicant “to understand why and how the decision was made”.

45The June 5, 2019 letter also does not answer the Applicant’s fundamental question: Why did the Respondent consider the Applicant’s two children to be safe in the maternal grandparents’ home after concluding “an unknown maltreater” in that location had caused the injuries?

46For these reasons, I find the Respondent did not fulfill its obligation to give the Applicant meaningful reasons for decisions that affected his interests. In particular, the reasons provided to the Applicant about the verification decision regarding VR’s April 2019 injuries were both untimely and inadequate.

conclusion

47For the reasons set out above, I find the Respondent only partially met its obligation under section 120(4)4 of the Act to hear the Applicant’s concerns. I further find the Respondent did not meet its obligation under section 120(4)5 of the Act to give the Applicant meaningful reasons.

order

48Within 30 days of the date of this decision, the Respondent shall write a letter to the Applicant giving meaningful reasons for the following:

• Why the Respondent communicated the results of the criminal investigation regarding VR’s injuries to the Applicant’s ex-spouse but left it to the police officer to inform the Applicant;

• How the Respondent reached the conclusion there was insufficient evidence to verify harm to VR by the maternal grandfather, including what factors it considered;

• Why once the verification decision was provided to the Applicant’s ex-spouse on June 7, 2019, the Applicant was not promptly advised of the verification decision; and,

• What factors the Respondent considered in concluding the Applicant’s children were safe in the maternal grandparents’ home.

confidentiality order

49Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Application with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.