BR v The Children’s Aid Society of Haldimand & Norfolk, 2021 CFSRB 61

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

BR

Applicant

-and-

The Children’s Aid Society of Haldimand & Norfolk

Respondent

DECISION

Adjudicator: John F. Spekkens

Date: September 8, 2021

Citation: 2021 CFSRB 61

Indexed As: BR v The Children’s Aid Society of Haldimand & Norfolk (CYFSA s.120)

APPEARANCES

BR, Applicant

Self-represented

Children’s Aid Society of Haldimand & Norfolk, Respondent

Darryl Clarke, Counsel

INTRODUCTION

1B.R. (the “Applicant”) and The Children’s Aid Society of Haldimand and Norfolk (the “Society”) entered into a Settlement Agreement (the “Agreement”) during a mediation held on June 30, 2021, providing for a full settlement of all issues raised by the Applicant in her application dated May 28, 2021, to the Child and Family Services Review Board (the “CFSRB”).

2The Agreement contained nine Terms, expressed as questions to the Society, which sought reasons and/or explanations from the Society. The parties agreed to a compliance date of August 12, 2021 and a non-compliance date of August 20, 2021.

3The Society sent a letter (the “Letter”), dated August 12, 2021 as its Response to the issues raised in the Agreement. The Letter was addressed to the Applicant and to the CFSRB.

4The Applicant sent an e-mail (the “E-mail”), dated August 17, 2021 to the Society and to the CFSRB, advising that she alleged non-compliance on all nine Terms of the Agreement.

5In accordance with the CFSRB’s procedures when there is an allegation of non-compliance, the CFSRB held a hearing by teleconference (“the Teleconference”) on September 3, 2021 to determine whether the Society had complied with the Agreement.

DECISION

6After reviewing the materials submitted by the parties, and hearing their positions at the Teleconference, I find that the Society did meet its obligations as required by section 120 of the Child, Youth and Family Services Act 2017 (the “Act”) and the commitments made in the Agreement, and thus is in compliance with the Agreement.

ANALYSIS

7The Act outlines the Society’s obligations and the mandate of the CFSRB. Section 120 reads as follows:

(4) The following may be reviewed by the Board under this section:

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

(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

(11) The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court;

8The Act does not mandate or permit the CFSRB to make a determination as to the clinical merit or validity of the decision made by the Society in the given situation under review by the CFSRB and for which the Society is giving its reasons under this section of the Act. This limitation on the CFSRB mandate is explained to every applicant at mediation, and was re-iterated during the Teleconference.

9In the Applicant’s E-mail, three paragraphs in length, the second paragraph reads as follows:

However, on August 13^th, 2021, I received via email the Society’s response to “Schedule A” of the Pre-Hearing / Mediation Report dated June 30^th, 2021. I had a chance to review their responses, and I am quite concerned about their inability to tell the truth, their incomplete investigation into the situation, and the indirect accusations made, etc. I am exceptionally unsatisfied with their “politician” answers.

10The E-mail lacked specificity as to what aspect of the Society’s response to each of the nine Terms was non-compliant. There was no allegation that the Society had failed to respond to each of the questions in the nine Terms. In fact, the E-mail acknowledges that the Society had given responses, but that the Applicant was not satisfied with the responses.

11In the Teleconference, I proceeded to review each Term, and the Applicant’s comments on each Term, to determine if compliance occurred.

Terms of the Agreement

Term 1: Regarding access visits with the children by the Applicant, initially the Society expected the Applicant to stay away from the accused A.M.; subsequently the Society increased its demands (e.g., the Applicant was requested to do drug tests once a week, and to keep the Society informed about the Applicant’s current address, and the Applicant was given differing reasons why access visits were not permitted);

a) why is the requirement on the Applicant increasing with time?

b) When will the Applicant know that the requirement will not continually change in the future?

12Absent a specific explanation for the allegation of non-compliance, I reviewed the Society’s letter.

13Regarding the three bracketed examples in the main paragraph of Term 1, the Society wrote that it “[…] requested that the applicant complete drug urine screening after the Society received a report of substance misuse by the Applicant. The Society requested this in order to resolve the allegation of substance misuse.” The Society then noted that “[…] the Applicant had been asked to do the same when the Society first became involved with the family and the request for this stopped after the concern was resolved.” The Society gave its reason for its request for being kept informed about the Applicant’s current address: “[…] this is so that the Society may keep in contact with the Applicant and so that the Society may see the Applicant’s home to assess the suitability of the home for future access.”. With regard to the Applicant’s question about being given differing reasons on access visits, the Society wrote as follows:

[…] access was not permitted during the police investigation as per the direction of police. Following this, the Applicant was not in contact with the Society and did not request access, but the Society later learned that the Applicant requested that the father provide her with access unbeknownst to the Society. Since initiating a child protection application, the Society has provided the applicant with supervised access on a consistent basis.

14The Society’s position on Term 1(a) is that it is not increasing the requirements on the Applicant, but rather that “[…] the requirements may change depending on the presenting circumstances.

15With regard to Term 1(b) the Society wrote that it “[…] cannot guarantee that there will no (sic) future changes to any requirements as these are conditional on what protection concerns are present and that itself can change with circumstantial changes for the Applicant, or with further reports of child protection concerns, etc.”

16I find that the Society responded to Term 1 (a) and (b) in a comprehensive manner, and explained fully the Society’s reasons for the two parts of the Term, and also for the examples used in Term 1.

Term 2: The Applicant requested her children be placed with her sister (M.R.) instead of with the S. family; why did the Society initially agree to a placement with M.R., and then subsequently wanted the children placed with the S. family?

17The Society’s response was that it did consider the request of the Applicant for the children to be placed with M.R. if placement became necessary. However, there then followed a period of infrequent contact with the Society by the Applicant. The Applicant was at that time caring for the children; the Society did not see the need for a placement for the children. This was followed by the Applicant becoming unable to care for the children, and the father assuming responsibility for the care of the children. When he reached the point of not being able to continue caring for the children, it was the father’s decision, and not the Society’s decision, to leave the children in the care of the S. family. Subsequently, when the Society brought a child protection application, “[…] the children had already been in the care of the S. family for an extended period of time. The children have positive relationships with their grandparents and the Society deemed it unnecessary to disrupt their placement when they were in what the Society deemed to be a safe home, with safe caregivers, who had provided care to them for an extended period of time […]”.

18I find that on Term 2, the Society gave a clear explanation on who made the decision to place the children, namely the Applicant and then subsequently the father. The Society also gave reasons for its decision not to involve itself actively in the choice of placement, and its reason for not overturning the father’s choice of placement.

Term 3: Why does the Society not listen to the children’s stated wishes to not live with the S. family, and their statements that they would prefer to live with their aunt M.R., or alternatively to live with their maternal grandparents on their farm?

19The Society’s reason for its actions regarding Term 3 is contained in one paragraph of its Letter:

The children do not consistently or independently state that they wish to live with either M.R. or the maternal grandparents. Additionally, the Applicant has been telling the children in access to state that they do not want to live with the S. family and to tell staff of the Society that they want to live with M. R. or the maternal grandparents. Therefore, the Society doubts the strength of those wishes.

20I find that on Term 3, the Society gave clear and adequate reasons for its decisions on the children’s wishes regarding placement.

Term 4: Why does the Society insist on supervised access visits for her parents (the maternal grandparents), considering that they have in no way in the past put the children at the risk of harm?

21The Society wrote as follows regarding to Term 4:

The Society insists on supervised access with the maternal grandparents because the maternal grandparents did not reasonably act to protect the child C. when C. told her maternal grandmother about the sexual harm she experienced. Specifically, the maternal grandmother did not report C.’s disclosure to anyone, and the maternal grandfather saw the alleged abuser leaving C.’s room after she was harmed. Additionally, C. also feels like her maternal grandparents have not intervened to keep her safe from her father in the past.

22I find that the Society responded to Term 4 by giving the factual basis for the reasons for their decision to insist on supervised access with the maternal grandparents.

23The review of the above four Terms followed a similar pattern. As mediator, I read out the Term from the Agreement, and read out the main parts of the Society’s response. I asked the Applicant the basis for her allegation that the Society did not comply with each of those four Terms of the Agreement. The Applicant either stated that the Society was wrong as to the facts, or that the Society was lying about various aspects, or that she remembered events in a very different sequence from that of the Society’s recollection of events, or that she basically disagreed with the Society’s reasons.

24I re-iterated to the Applicant that section 120(7)(d) of the Act requires “[…] the society to provide written reasons for a decision to a complainant;”.

25I also re-iterated to the Applicant that section 120 of the Act does not mandate the CFSRB to overturn case management decisions of a Society, nor to search out “the truth” when the two parties have strongly divergent recollections of a certain set of events. Instead, both parties have a right and a responsibility to put their side of an issue before a court, for the court to make a decision on a given situation based on the evidence put before that court. The opportunity for doing so, in this case, is the protection application that the Society has made to the court.

26At this point, the Applicant suggested that it was not worthwhile to review the other five Terms of the Agreement, given that her objections to each of those remaining Terms would be similar in nature to her objections to the four Terms reviewed above. She indicated that she saw “no point in going through” with the remaining Terms.

27I consider the Applicant’s position as being in effect a withdrawal of her allegation of non-compliance regarding the five remaining Terms of the Agreement. Therefore, this Decision will not deal with the five remaining Terms of the Agreement.

28I also recognize that the Applicant’s withdrawal of the non-compliance allegation does not mean that she fully accepts the Society’s statements and reasons given regarding Terms 5 through 9 of the Agreement. Rather, I see it as her recognition that the CFSRB is not the appropriate setting to challenge the Society’s actions and the Society’s reasons for its actions, and that she accepts the situation as such.

CONCLUSION

29I find that the Society has given the Applicant reasons for its decisions and actions in each of Terms 1 through 4 of the Agreement. The Society provided sufficient information to put its decisions into the broader context of all aspects of this case, which has been known to the Society since the case was first opened. I also find that the reasons given were relevant, clear, and precise, and given in a manner timely to the evolving developments of the case at the time of those decisions.

30I make no finding as to any aspects of Terms 5 through 9 of the Agreement because in effect the allegation of non-compliance for those Terms was not pursued by the Applicant. Therefore, this Decision will not list the five remaining Terms.

ORDER

31For the reasons given I find the Society met its obligation to provide reasons for its decisions in accordance with the Agreement and the Act. Therefore, the allegation of non-compliance regarding Terms 1 through 4 is dismissed, and the CFSRB's file is closed as settled.

SUPPLEMENTARY MATTER

32The Applicant raised a question about the standard Confidentiality Order of the CFSRB found on all CFSRB-issued materials. She wondered how she could raise issues in court, as suggested, about matters that have been raised at the CFSRB, specifically the nine issues raised as the Terms of the Agreement, given that she sees the CFSRB’s standard Confidentiality Order as very broad-reaching.

33What is covered by the Confidentiality Order is any correspondence, reports, summaries, and notes written by the parties or by the CFSRB and which were explicitly written for the purpose of this Application and/or emanating from this Application. Also covered by the Confidentiality Order are the verbal discussions between the parties and with the CFSRB at various stages of this Application as it evolved.

34The Applicant and the Society each have multiple documents, reports, and a multitude of case notes and personal notes in their possession from prior to the Application to the CFSRB. Such background materials are not covered by the CFSRB Confidentiality Order, and are not restricted in any other use by the CFSRB Order.

CONFIDENTIALITY ORDER

35Pursuant 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 on-line. 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.