JT v. Children’s Aid Society of Hamilton, 2021 CFSRB 73

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JT

Applicant

-and-

Children’s Aid Society of Hamilton

Respondent

DECISION

Adjudicator: Michele O’Connor

Date: October 22, 2021

Citation: 2021 CFSRB 73

Indexed As: JT v Children’s Aid Society of Hamilton (CYFSA s.120)

APPEARANCES

JT, Applicant

Self-represented

Children’s Aid Society of Hamilton, Respondent

Mr. David Sider, Counsel

Introduction

1J.T. (“the Applicant”) filed a complaint against the Children’s Aid Society of Hamilton (“the Respondent”/”the Society”) on April 26, 2021 under sections 120(4)4 and (4)5 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1, (the Act).

2The application, as originally filed, contained allegations and concerns relating to the physical and mental health and the safety of his children in the care of their mother. There is a Children’s Law Reform Act matter (“CLRA”) presently pending before the court. Consequently, in an interim decision dated June 3, 2021, the CFSRB determined these matters were outside its jurisdiction pursuant to s.120(8) of the Act.

3At the pre-Hearing on July 15, 2021, it was determined that there would be a hearing with respect to the Applicant’s remaining allegations, specifically:

a) That he was not provided reasons for the Respondent’s decisions during its investigation into his concerns regarding the health and safety of his children while in the care of their mother, or that his concerns were minimized by staff in their reasons;

b) That he, as a father, was not informed of the Respondent’s involvement with his children and their mother, and what was happening with his children;

c) That Respondent staff discriminated against him because of his gender as well as his race;

d) That the Supervisor did not reply to 4-5 messages and that Respondent staff ignored his requests for information; and

e) That he was accused of threatening a Respondent staff member when he informed her of his intention to lodge a complaint against the Respondent.

4The CFSRB must decide whether the Society met its obligations regarding the Applicant’s complaints – was he given an opportunity to be heard, and was he given reasons for decisions that affected his interests.

5The hearing was held on September 17 and September 22, 2021. The Applicant testified and, on behalf of the Society, I heard evidence from the investigating worker’s supervisor, JM, (“the supervisor), and from the Service Director, SP (‘the Director”). Documentary evidence was filed by the Society.

6For the following reasons, the CFSRB finds that the Society did not give the Applicant an opportunity to be heard, nor did it provide him with satisfactory reasons for its decision to close its investigation into the Applicant’s concerns about his children’s health and safety in their mother’s care. The Society was restricted by statutory privacy considerations in the amount of detail it disclosed to him, but the reasons initially provided to him were inadequate. Only after he filed this complaint was he given an opportunity to be heard and an apology. After an ICRP on June 14, 2021, he was given a more fulsome explanation for the Society’s actions.

BACKGROUND

7The Applicant is the father of two children, KT, who is now almost 7 years old, and CT, who is almost 5.

8The children’s mother is AC. The children remain in her care. The Applicant has access.

9The Applicant and AC resided together until approximately 4 years ago. AC filed an application with the court under the Children’s Law reform Act (“CLRA”) and was granted legal custody of the children in January 2020. The Applicant was noted in default and did not participate. He asserts that he was not notified of these proceedings.

10The Applicant is currently represented and he advised that the CLRA matter regarding his children is scheduled to resume in court in October of 2021.

11On January 31, 2021, the Applicant reported to the Society a litany of safety concerns about his children. This was followed by copies of text messages and video materials sent to the worker which the Applicant believes established a clear risk to his children’s safety in their mother’s care.

12On April 26, 2021, the Applicant complained to the CFSRB, sent a written request to the Society requesting an ICRP, and he forwarded his complaint to the Ombudsman.

13On June 14, 2021, the Society convened an Internal Complaints Review Process (“ICRP”) in which the Applicant participated. On June 28, 2021, the Society wrote to the Applicant with specific recommendations. On July 28, 2021, it sent an updated closing letter with a more fulsome explanation and reasons for its decisions.

ANALYSIS

14The relevant provisions of the Act are set out below:

Section 120(4) of the Act provides:

The following matters may be reviewed by the Board under this section: …

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

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

Section 15(2) provides:

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.

Section 120(7) of the Act provides:

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;

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

(e) dismiss the complaint.

15In PO v. Family and Children’s Services Niagara 2012 CFSRB 38 at paras. 14 -15, the CFSRB described the purpose of provisions equivalent to s.120(4)4 and 5 of the Act in its predecessor legislation, i.e., sections 68.1(4) 4 and 5 of the Child and Family Services Act, RSO 1990, C.11, 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 her concerns are taken seriously and dealt with thoroughly.

16This description of the purpose applies to the current legislative scheme. Moreover, the right to reasons under the Act means a right to a meaningful explanation about decisions that affect the applicant’s interests. In JG v Windsor Essex Children’s Aid Society, 2013 CFSRB 8, the CFSRB held that:

With respect to s.68.1(4)5 (now s.120(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.

17The Act does not mandate or permit the CFSRB to make determinations as to the clinical wisdom or validity of decisions made by the Respondent and for which the Respondent is giving reasons under s.120(4)5.

ISSUE 1 That he was not provided reasons for the Respondent’s decisions during its investigation into his concerns regarding the health and safety of his children while in the care of their mother, or that his concerns were minimized by staff in their reasons

18The Applicant testified that he reported to the Society on January 31, 2021, his concerns about his children’s safety in their mother’s care including details of a recent stabbing in the home which required the victim to get several staples in her head. He subsequently sent the worker copies of texts between the children’s mother and a friend in which the mother expressed her fear of a possible drive-by shooting by the same people involved in the stabbing. And he sent the worker video clips reportedly showing the mother intoxicated.

19This information provided to the Society by the Applicant was based on information he had received from other sources, none of the incidents having been observed directly by the Applicant. He believes this information supplemented and supported his ongoing concerns about the mother’s inadequacy as a parent and he wanted the Society to intervene to protect the children.

20In the Applicant’s report to the Society, he advised that he was bringing an emergency motion at family court and had reported his concerns to the police.

21The Society assigned the child protection worker on February 3, 2021, to conduct the investigation. That worker was supervised by JM who testified at the hearing. The worker attended without an appointment at the children’s residence on February 5, 2021. She interviewed the children and their mother. She determined there was no immediate risk.

22On February 10, 2021, after the worker had contacted the mother twice more, and had spoken with collaterals, she called the Applicant to advise him of the outcome. The Applicant adamantly disagreed with her assessment. He sent the worker further information (i.e. the texts and videos) which the worker agreed to follow up on. On February 22, 2021, the worker advised the Applicant that the Society was not able to verify his concerns. She scheduled a home visit with him which occurred on March 2, 2021. At that meeting the Applicant provided additional information and raised concerns about the children at school. The worker followed up with the children’s mother on March 10, 2021, about these concerns and was satisfied with the steps the mother had planned to address them. On March 15, 2021, the worker advised the Applicant of the outcome of the Society’s investigation and of its intention to close the file.

23The Applicant’s emergency motion in family court was dismissed on February 17, 2021. He is now represented by counsel and the court action is scheduled to proceed in October 2021.

24The Applicant had also reported his concerns to the police. The police followed up by contacting the mother and, in reports to the worker dated February 12 and 14, 2021, did not report any concerns about the children at that time.

25The Applicant’s evidence was that he expected a more immediate response, that the worker “blew me off”, and “she did not do what was necessary to protect my children”. In his view, “Ideally those children need to be out of that house with the drinking, gangsters, stabbing etc.”.

26On April 27, 2021. The Applicant filed his complaint with the CFSRB. He also made a formal complaint to the Society requesting an ICRP and notified the Ontario Ombudsman.

27On April 29, 2021, the Society sent the Applicant a closing letter confirming that the investigation is closed and “There were no verified worries for your children C and K at this time”. The letter explained that the Society was not able to disclose all of the information obtained during the investigation due to privacy laws. It reiterated that the worker had attended at the children’s home unscheduled, the children appeared healthy and content and interacted positively with each other and their mother. The children were interviewed separately and privately. They did not report any worries about their care by their mother, and they did not appear to be aware of the incident of violence at the home in January.

28The supervisor asserted in his testimony that in its closing letter the Society had given reasons for decisions made by the Society and reminded him of the privacy rights of the mother that restricted the ability of the Society to share certain details.

29In my view, the worker’s interactions with the Applicant and the closing letter lacked sufficient explanation of the Society’s role, how an investigation is conducted, timing, coding, and the specific ramifications of the privacy provisions in the CYFSA (the “Act”). The outcome may have been the same and the Applicant may still have been unsatisfied. He was desperate, having received and reported to the Society very concerning information about incidents in the home where his children reside. Greater care and attention was needed in the feedback given to him. As noted above in JG v Windsor Essex Children’s Aid Society, “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.” (emphasis mine).

30The Director testified that she had no direct contact with the Applicant or his situation, but she reviewed the Applicant’s CFSRB complaint and his written complaint to the Society. Prior to the offer of an ICRP, “as a parallel resolution opportunity” she offered to meet with him so he would have the opportunity to explain his concerns and for her to give him reasons for decisions the Society had made.

31The Director and the Applicant met virtually on May 6, 2021, for approximately one and a half hours. She explored with him his concern that he never felt listened to and that the Society did not share with him the outcome of the investigation. He acknowledged that the worker did attend at his home and advised the case would be closed, but he could not understand why the children were not removed from the home when the January assault was discovered. He felt he had provided “evidence” but the worker did not care and did not feel he had any rights as a father.

32The Director explained various aspects of an investigation and explained that closing the case did not mean the Society did not believe the Applicant, but rather that its assessment was such that there was no ongoing risk that the Society was able to confirm or verify. She also explained evidence issues and how difficult it is to be involved with someone who does not want to work with the Society when direct evidence is lacking. The Applicant expressed his view that he did not understand this and felt the Society should be able to just move the children from their mother and, if not possible to place with him, then place the children in foster care until he could form a case for them to be placed with him.

33The Director also explained the outcome of the ICRP, and the contents of its letter to the Applicant dated June 28, 2021.

34The Applicant acknowledged in cross-examination that the Director had listened to him and gave him an opportunity to ask questions. “She knew I was frustrated and helped calm me down”. But in his view, she was not the one he was complaining about and she had no direct involvement with his case.

Issue 2 That he, as a father, was not informed of the Respondent’s involvement with his children and their mother, and what was happening with his children

35The Applicant’s evidence on this issue was similar to his testimony on Issue 1 and my conclusion is the same. Greater care and attention was needed in the feedback given to him.

36Essentially, the Applicant testified that he was given no information as to what steps the Society would take to investigate his concerns about his children, when or how it would do so, and how/why it would make the decision as to whether or not his concerns were “verified”. In his view, he understood that the problem had to be fixed through the court, but he expected the Society would “help” him to protect his children. Further, he believes the Society should have worked with the mother and arranged for her to get some help for her drinking problem, and possibly removed the children from her care while she did so. By closing the file without taking any action at all, the Applicant believes he was not taken seriously by the Society.

37In a more recent file opening with the Society, the Applicant has a different worker who has explained to him investigative timelines and the Eligibility Spectrum which he now has a better grasp of. But at the time of this initial investigation, the worker failed to do this.

Issue 3 That Respondent staff discriminated against the Applicant because of his gender as well as his race

38The Applicant testified that he was discriminated against because of his race and his gender.

39The Applicant is mixed- race. He believes the worker spoke to him “with disgust”, and that she “pre-judged” him because he is male. He perceived as verbal discrimination the worker’s statement to him that she would not remove the children from their mother. He admitted to being “upset” and “fired up at times” but says he was just concerned for his children and wanted somebody to work with him. He also perceived that “it was always female workers” who refused to disclose information to him. He says he was repeatedly put on hold when he called “and they knew it was me”. He believes “they should have been telling me what they were doing to help.”

40The Supervisor and the Director specifically denied awareness of any racist behaviour or comments by the workers involved with this family.

41While I do not question the Applicant’s perceptions, there was no direct evidence upon which I can conclude that racism or gender bias played any part in the Society’s involvement with this family.

Issue 4 That the Supervisor did not reply to 4-5 messages and that Respondent staff ignored his requests for information

42The evidence of the Applicant and of the Society witnesses confirm that the Applicant left several messages for the Supervisor, none of which were returned.

43The Applicant asserts that he wanted to speak with the supervisor to complain about the worker. Rather than replying to him, the supervisor forwarded his messages to the worker for follow-up. This is primarily what the Applicant takes issue with.

44The supervisor testified that the Applicant’s first 2 voicemails were on February 9, 2021. The Applicant repeated his concerns about his children and said that he disagreed with the investigating worker’s conclusion that the children were safe in their mother’s care at that time. He said he was filing a complaint with the Ombudsman and would be suing the Society. He asked that the supervisor call him back. The supervisor forwarded these messages to the worker for follow-up.

45On February 10, 2021, the Applicant left the supervisor another message that he had not heard back from the worker and “expressed his concerns for his children’s safety and about the Society’s investigation methods”. He reiterated his intention to complain to the Ombudsman and file a lawsuit. The supervisor “informed” the worker of this call.

46The worker called the Applicant on February 10, 2021, listened to his concerns and advised him that she had not found evidence to support his concerns. The Applicant said he was “disgusted” and would be serving legal documents on the Society as he was upset that “his kids are going to get hurt”. The worker confirmed his right to complain and shared information with him on how to do so. He reportedly told her to tell the supervisor to call him. She confirmed that he had the supervisor’s contact information and told him it was best to call the supervisor directly.

47On February 12, 2021, the Applicant sent the above-mentioned texts and video cllips to the worker. He left the supervisor another message requesting a call back. In the supervisor’s evidence, the content of the message was reproduced in full. The Applicant spoke of the new information he had provided, focussing on the investigation and ongoing service decisions, and stating specifically “I’ve been trying to tell you guys that something very bad is going on and nobody wants to listen to me. … There is an investigation that’s going on. I’ve been trying to explain myself over and over and I keep talking to messages so please call me back before my kids get really hurt….”.

48The supervisor testified that, again, he did not return this message but instead, he forwarded it to the worker with a request for her to follow up with the Applicant. “I viewed (the worker) as the best person to communicate with (the Applicant) as she was the investigating worker.” He said that, “In retrospect, I should have called him back.”

49The Applicant’s overall perception was that he felt disrespected and disregarded by the Society.

50On February 19, 2021, the supervisor and the worker discussed the investigation progress and decided to offer the Applicant a home visit to give him an opportunity to discuss any new worries. By this time they had learned (from the children’s mother) that the court had dismissed the Applicant’s emergency motion on February 17, 2021. The worker attended at the Applicant’s home on March 2, 2021.

51On April 27, 2021, the Society received the Applicant’s CFSRB application. The supervisor noted in his testimony that “it included his concern that I had not directly returned his telephone messages as he requested.” He and the worker met on April 29, 2021, to review her investigation and “together we made the verification decision that ended the formal investigation. There were no verified worries for the children at that time. There appeared to be significant conflict between the parents though there was no information that indicated the children were exposed to it at this time.” Together the worker and supervisor authored the “closing letter” to the Applicant dated April 29, 2021.

52On April 30, 2021, the supervisor contacted the Applicant by telephone. He acknowledged that he had not returned his calls and apologized for not responding directly to him. On May 3, 2021, he sent the Applicant a letter of apology acknowledging that he should have shown the Applicant the respect he deserved by calling him back. “I am sorry for that and how it made you feel”.

53From the Applicant’s perspective, this was too little too late. “He apologized to stop me from proceeding with my complaint and to save his own butt…. He should have contacted me back, and he should never have referred my complaint about the worker back to the worker.”

54I find that the Applicant is correct. There is no satisfactory explanation for the supervisor’s persistent failure to respond to the Applicant’s messages. This is a prime example of the Society’s failure to give the Applicant an opportunity to be heard.

Issue 5 That he was accused of threatening a Respondent staff member when he informed her of his intention to lodge a complaint against the Respondent

55The Applicant’s statements on this issue were that, after he mentioned to the worker his intention to file a formal complaint and possibly sue the Society, she reacted with the question “Are you threatening me?” He explained that he was definitely not threatening the worker. He was simply trying to protect his children, nothing more. He said he was shocked at her reply.

56I find that this was an opportunity for the worker to de-escalate things between the Society and the Applicant. She elected not to. This is another example of the Society’s failure to hear the Applicant.

DECISION

57Regarding Issues 1, 2, 4 and 5, I find that the Society failed to give the Applicant the opportunity to be heard.

58Additionally, the Society did not provide the Applicant with satisfactory reasons for its decision to close the file. The test in J.W. v. Windsor Essex CAS (cited above) has not been met. The Applicant was not given sufficient information regarding the factors taken into account by the Society to allow him to understand why and how this decision was made.

59Regarding issue 3, I find that there was not sufficient evidence to conclude that the Society’s failure to give the Applicant an opportunity to be heard and satisfactory reasons for its decisions was motivated by racism.

ORDER

60My remedial powers in this matter are restricted to those options set out in section 120(7) of the CYFSA as specifically set out at paragraph 13 above.

61After the Society received the Applicant’s complaint to the CFSRB, it convened an ICRP, sent the Applicant a letter acknowledging his concerns with several recommendations for action, and sent him a further closing letter with a more fulsome explanation for the steps it took in the course of its investigation.

62The panel recommendations following the ICRP to the Applicant were as follows:

1. “As an access parent, you have a right to information about the health and well-being of your children. You indicated you had not received any written communication from the agency regarding the closure of the file related to your children. The closing letter originally sent to you on May 4, 2021, will be emailed and couriered to you again.

2. The panel has asked the service team to review the decisions and steps taken prior to the closing of the file on April 30, 2021, and provide this information to the panel. Following the review, the service team will provide an updated closing letter outlining a more wholesome explanation for the closure, keeping in mind there may be some limitations due to privacy.

3. A formal apology be issued by (the supervisor) regarding your complaint that you felt ignored by him. The panel understands that this apology by (the supervisor) was already sent to you and that the apology was made again during the ICRP.

4. Based on your feedback of feeling discriminated against based on your gender, a note will be place on your file to acknowledge your experience. If possible, the agency will consider assigning another worker to the file should the case be re-opened.

5. The service team provides a list of resources for supports in the community for fathers that may be helpful to you and your children.”

63Evidence at the hearing confirmed that the note had been placed on the Applicant’s file as recommended by the ICRP panel, and the updated closing letter was sent to him on July 28, 2021.

64There is nothing further I can order given the limited remedial authority available under s. 120(7).

Confidentiality Order

65Pursuant 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.