MM v. Child and Family Services of St. Thomas and Elgin County, 2023 CFSRB 55

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

MM

Applicant

-and-

Child and Family Services of St. Thomas and Elgin County

Respondent

DECISION

Adjudicator: Malcolm M. MacFarlane

Date: July 05, 2023

Citation: 2023 CFSRB 55

Indexed As: MM v Child and Family Services of St. Thomas and Elgin County (CYFSA s.120)

APPEARANCES

MM, Applicant

Self-represented

Child and Family Services of St. Thomas and Elgin County, Respondent

Joyce Dittrich, 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, S.O. 2017, c.14, Sched.1, (the “Act”).

2The Application was found eligible for review on February 15, 2023 under sections 120(4) 4 and 120(4) 5 of the Act: The Applicant was not given the opportunity to be heard and represented when decisions affecting his interests were made, or a chance to be heard when he raised concerns about the services he is receiving; and the society is alleged to have failed to provide the Applicant with reasons for a decision that affected his interests.

3In mediations that took place on March 24, 2023 and April 3 2023, the following issues were identified:

1. The Applicant alleged that he was not heard by Respondent staff when his son was removed from his mother’s care in 2018, including whether he was able to care for his son;

2. The Applicant alleged that he was not provided with reasons by Respondent staff why his son was not returned to his mother;

3. The Applicant alleged that Respondent staff did not hear his requests to re-establish contact with his son; and has not informed the Applicant’s son of the Applicant’s efforts to reach out to his son;

4. The Applicant alleged that his requests to speak with a Manager were not heard by Respondent staff;

5. The Applicant alleged that Respondent staff did not hear his unique situation and how the situation would impact on the relationship between he and his son; and

6. The Applicant alleged that Respondent staff failed to hear his concerns related to their requests for his health information.

4The hearing on the merits took place by videoconference on June 7, 2023.

5The Applicant testified.

6An Affidavit from the Respondent’s Permanency Worker Tracey Hedges was supplemented by oral testimony.

7Written documentation submitted and considered in reaching my decision included the Applicant’s Application dated February 13, 2023, and the Respondent’s Response dated February 25, 2023 which included:

• Statement of Live Birth for the Child which on which no information regarding father was provided.
• Affidavit of Krista Van Den Berge dated June 27, 2018 in support of a motion by the Respondent to dispense with service to the Applicant and detailing the Respondent’s unsuccessful efforts to locate the Applicant.
• Order by Justice G. Donald Dated June 29, 2018 dispensing with service to the Applicant.
• Affidavit of Alexander Nimene dated December 13, 2018 indicating that there was no further information available regarding the Applicant’s whereabouts.
• Order by Justice G. Donald dated June 21, 2019 dispensing with service to the Applicant.
• Order by Justice G. Donald dated June 17, 2019 placing the Child in Extended Society Care with right of access only to the Child’s mother.

the law

8Section 120 of the Act provides that, “If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may, (a) decide not to make the complaint to the society under section 119 and make the complaint directly to the Board under this section.”

9With respect to the right to be heard, Section 120(4)4 of the Act references, Section 15(2) which requires 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.”

10The “right to reasons” under section 120(4)5 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.

11J.M. v. Durham Children’s Aid Society, 2014 CFSRB 72 at paragraph 20 indicates that the sufficiency of 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 person 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.”

background

12The Applicant is the father of a Child, now aged 10.

13According to the Affidavit of Krista Van Den Berge, the Applicant and the Child’s mother were never married, and the Applicant has never established himself as the legal parent of the Child.

14The Applicant testified that the Child was planned, and that he and the Child’s mother did intend to cohabit, but that these plans did not come to fruition for a variety of reasons. The Applicant states that he continued to maintain an interest in the Child and periodically sent the Child care packages via the Child’s mother.

15The Child was the subject of a Child Protection Application commenced on May 3, 2018. Attempts were made to locate the Applicant to provide notice of the child protection proceedings, but the Respondent was not able to locate the Applicant. The Respondent’s efforts to locate the Applicant are outlined in the Affidavit of Krista Van Den Berge.

16On June 29, 2018 based in part on the Affidavit of Krista Van Den Berge, Justice G. Donald made an order dispensing with service to the Applicant.

17A subsequent order dispensing with service was made by Justice G. Donald on June 21, 2019 based in part of the Affidavit of Alexander Nimene indicating that the Respondent still had no knowledge of the Applicant’s whereabouts.

18June 17, 2019 Justice G. Donald made an order placing the Child in Extended Society Care with right of access only to the Child’s mother. The Applicant was not granted any right of access under this order.

19The Child is currently placed with relatives and is in the process of being adopted by the relatives. The adoption process is close to being finalized.

20On July 25, 2022, the Applicant advised the Respondent that he was the biological father of the Child and would like to have contact with the Child. The Applicant indicated to the Respondent that he would like to have telephone contact with the Child, to move from there to video chat with the Child, and ultimately to have the Child visit with him in person where he lives in another province. The Applicant testified during the hearing that he did not object to the adoption and did not wish to interfere in the adoption process.

21According to the Affidavit of Tracey Hedges, the Respondent was concerned that contact between the Child and the Applicant would be destabilizing to the Child who was in the process of being adopted. The Respondent was also concerned that the Child had a history of trauma that could also be destabilized by contact with the Applicant.

22The Society was further concerned upon learning that the Applicant was alleged to have been sexually inappropriate with the Child’s older sister when the sister was age 2. According to testimony from Tracey Hedges, these allegations were investigated and not validated, however as the Child’s sister lives with him there was also a risk of contact between the Applicant and the Child destabilizing the Child’s sister. The father denies these allegations and both the Respondent and the Applicant indicate that he was never interviewed regarding these allegations at the time they were made as he was unable to be located.

23It is the Respondent’s position that as the Applicant has no right of access under Justice G. Donald’s order placing the Child in Extended Society Care, he is not entitled to access or to notice or input into adoption proceedings.

24The Respondent has informed the Applicant that he needs to bring his concerns to the Court and request access, and that this should be done before the adoption is finalized. The Respondent has also offered to explore mediation between the Applicant and the adopting relatives to discuss the Applicant’s request for access. The Respondent has offered the Applicant the opportunity to assist in completing the Child’s social history which is information that will be provided to the Child as part of his adoption.

analysis

25In considering this Application, I focused on issues 1 to 6 as outlined above. It is not within the jurisdiction of the CFSRB to order access for the Applicant to the Child as these matters are before the courts.

Issue 1: The Applicant alleged that he was not heard by Respondent staff when his son was removed from his mother’s care in 2018, including whether he was able to care for his son

26The Applicant testified that he was informed by the Child’s mother on a number of occasions that she was involved with the Respondent in child protection proceedings, and that the Child had been removed from her care. According to the Applicant’s testimony, the Child’s mother reassured him that she expected the Child to be returned to her care. Based on these reassurances the Applicant chose not to contact the Respondent regarding the child protection proceedings.

27The Applicant testified that he is in the military and is periodically out of the country and can be difficult to contact.

28Despite periods of unavailability, the Applicant indicates that being in the military, it is not difficult to locate him and he can be readily contacted through any military base. The Applicant testified that he believes the Respondent’s efforts to locate him were inadequate.

29The Respondent’s witness Tracey Hedges testified that the Respondent received no information to indicate that the Applicant was in the military and could therefore be contacted through the military.

30The Respondent provided the Affidavit of Krista Van Den Berge which outlines the Respondent’s efforts to locate the Applicant. Upon review of these efforts, I find that the Respondent made a thorough effort to locate the Applicant to provide service.

31The Respondent further states that their efforts to locate the Applicant were reviewed by the court and that Justice G. Donald found them sufficient and made an order dispensing with service to the Applicant.

32While I empathize with the Applicant’s circumstances of not being informed of these proceedings, I find that the Respondent made reasonable and sufficient efforts to ascertain the whereabouts of the Applicant. There is no evidence before me to indicate that the Respondent was aware that the Applicant was in the military and could be located through the military. Further, since the matter of service has been dealt with through the courts, I find that the subject of this complaint has been dealt with by the courts, and therefore is not within the jurisdiction of the CFSRB under section 120(8) of the Act.

33For the above reasons, issue 1 is dismissed.

Issue 2: The Applicant alleged that he was not provided with reasons by Respondent staff why his son was not returned to the Child’s mother

34The Applicant alleges that the Respondent has not provided him with reasons for their decision not to return the Child to the Child’s mother. Under section 12(4)5 of the Act, service recipients are entitled to reasons for the Respondent’s decisions.

35I considered whether the Applicant was a service recipient under the Act. The definition of a service under the Act is found at section 2(1) and includes:

(d) a service for a child who is or may be in need of protection or the child’s family, and;

(e) a service related to adoption for a child, the child’s family, or others

36I find that the Applicant is receiving a service under the Act as his Child has been found in need of protection, and is receiving services related to adoption.

37I find that the Applicant qualifies as family under section 2(1)(d) and (e) as he meets the criteria under the Children’s Law Reform Act section 7(1) of being a biological parent. The Applicant has been accepted as being a biological parent of the Child and the Child’s father in several court documents including the Affidavits of Krista Van Den Berge and Alexander Nimene and in the Orders of Justice G. Donald dispensing with service to the Applicant.

38While the Child has been in Extended Society Care since June 17, 2019, the issues raised by the Applicant relate to not having received reasons for the Respondent’s actions prior to Extended Society Wardship. I find that this timing clearly places the Applicant’s issues within Part V of the Act, Child Protection, which includes Section 120(4)5 requiring the Respondent to provide reasons.

39Based on the above, I find that the Applicant is entitled to reasons under the Act.

40The Applicant’s right to reasons is limited by Section X of the Act, which protects the confidentiality of other individuals, in this case, the Child’s mother.

41The Respondent has stated to the Applicant that the most appropriate avenue for obtaining details regarding child protection proceedings is to request disclosure from the courts. According to testimony from the Applicant, he was informed by Tracey Hedges that he could request court documents, but was told that they would be heavily redacted, and he thought, “what’s the point.”

42According to testimony from the Applicant in cross examination, he stated that he only recently obtained some court documents detailing why the Child was removed. The Applicant further stated that the Respondent has now provided information and explained about the disclosure. The Applicant argues that the Respondent should have provided reasons prior to him obtaining a disclosure.

43In her testimony, Tracey Hedges stated that she had not provided information regarding why the Child was not returned to his mother’s care due to concerns regarding the mother’s privacy.

44Based on the testimony of both the Applicant and Tracey Hedges, I find that the Respondent did not provide the Applicant with any reasons for the Child’s removal from the mother, and that the Applicant only received information and reasons regarding events leading to the Child’s removal when he was able to access court documents.

45While the Respondent has a responsibility to protect the confidentiality of the mother under section X of the Act, I find that as a service recipient and parent, the Applicant also had a right to reasons to help him understand the circumstances and decisions made leading to his Child had coming into the care of the Respondent and now being placed for adoption.

46The Respondent had from July 25, 2022 until the filing of this Application on February 13, 2023 to provide the Applicant with reasons for the Child’s removal from the mother, however it failed to do so.

47I find the Respondent failed to provide reasons for the Child not being returned to the mother’s care, however the evidence before me is that the Applicant has now received disclosure and has the information he requires and is entitled to. The Applicant testified that the Respondent has now “provided information and explained regarding the disclosure.” Given that the Applicant now has disclosure of reasons, there is no further relief I can offer him.

48For the reasons outlined above, issue 2 is upheld, but no further action on the part of the Respondent is ordered.

Issue 3: The Applicant alleged that Respondent staff did not hear his requests to re-establish contact with his son; and has not informed the Applicant’s son of the Applicant’s efforts to reach out to his son

49There are two parts to this issue: a) whether the Respondent heard the Applicant’s requests to re-establish contact with his, son, and; b) whether the Respondent has informed the Applicant’s son of the Applicant’s efforts to reach out to him.

50Regarding part a) of this issue, the Applicant states in his Application that in June 2022 he informed the Respondent of his desire to establish contact with his son. According to the Affidavit of Tracey Hedges, on July 23, 2022 she spoke with the Applicant about his desire for contact with the Child. She states that in August 2022 she learned upon reviewing the file of allegations of inappropriate sexual touching between the Applicant and the Child’s older sister that were the subject of a child protection investigation in 2018. The Applicant states in his testimony that he was not aware of these allegations at the time, except for “high school rumours.” According to Tracey Hedge’s Affidavit, the Applicant stated he had read about these allegations in a court document. All parties agree that the Applicant was never interviewed regarding these allegations as he was not able to be located at the time of the investigation. Tracey Hedges testified that the allegations were not verified.

51The discovery of these historical allegations led the Respondent to make a referral to child protection services in Edmonton, Alberta to ensure that children in Alberta who the Applicant had access to were not at risk. Any decisions regarding contact between the Applicant and his son were deferred pending feedback from child protection services in Edmonton. In November 2022, the Respondent was advised by child protection services in Edmonton that they would have no further involvement with the Applicant.

52According to Tracey Hedges Affidavit, on December 2, 2022, she advised the Applicant that the Respondent would assess whether some level of contact between the Applicant and the Child would be in the Child’s best interests. Tracey Hedges had further discussions with the Applicant on February 2, 2023. In her Affidavit, Tracey Hedges states that she had several conversations with the kinship caregivers of the Child who would be adopting him, and that the caregivers were concerned that contact between the Child and the Applicant would be destabilizing for the Child.

53According to testimony from Tracey Hedges, the Respondent ultimately determined that it would not be in the Child’s best interest to have contact with the Applicant due to the risk of destabilizing the Child. Tracey Hedges stated in her testimony that this decision was not specifically relayed to the Applicant and the Respondent’s deliberations regarding his request for contact were not shared with the Applicant in part as the CFSRB process had begun by the time the decision was made.

54In considering part a) of this issue, I find that the Respondent did hear the Applicant’s requests to re-establish contact with his son and did consider this request in terms of the Child’s best interests. The law and the Act does not provide me with the authority to determine the correctness of the Respondent’s decisions in this matter, this is an issue for the courts if the Applicant chooses to address this matter with the courts.

55With respect to part b) of this issue, these issues are more substantive in nature an it is not within my jurisdiction to determine the Respondent should, or should not, have informed the Child of the Applicant’s attempts to reach out to him. Despite this as this was an issue identified at the Prehearing/Mediation regarding which the Applicant is entitled to reasons, I include a discussion of the Respondent’s reasons for their actions or lack of actions regarding this issue.

56In her Affidavit, Tracey Hedges stated that on March 8, 2023, she asked the Child if there were any family members that he would like to know more about or like to explore having contact with. The Child replied, “Not really.”

57In her testimony, Tracey Hedges stated that she does not know if the Child is aware that the Applicant is his biological father, and that when she asked him about having contact with a parent, it was not clear that he knew she was speaking about his father. Tracey Hedges testified that the Child has not been informed that his father had reached out to him.

58Based on the above, I find that the Child has not been informed that the Applicant has reached out to him. However, as noted above regarding part a) of this issue, The law and the Act does not provide me with the authority to determine the correctness of the Respondent’s decisions in this matter, therefore I am unable to address this issue in a way that would provide any relief for the Applicant. Again, this is a matter for the Applicant to address with the courts.

59For the reasons provided above, issue 3 is dismissed

Issue 4: The Applicant alleged that his requests to speak with a Manager were not heard by Respondent staff

60The Applicant stated that he did have an email conversation with a supervisor, and that it went better than his conversations with Tracey Hedges.

61The Applicant also stated that he did speak with a Manager and that he found the Manager was empathic and listened to him, but was not able to do anything.

62Based on this testimony, I find that the Applicant’s requests to speak with a Manager were heard by the staff, and that he was provided with an opportunity to speak with a Manager.

63For the above reasons, issue 4 is dismissed.

Issue 5: The Applicant alleged that Respondent staff did not hear his unique situation and how the situation would impact on the relationship between he and his son

64In his testimony, the Applicant spoke about his job in the military taking him out of the country and resulting in delays in communication. He argued that this difficulty with communication should be considered in terms of missed timelines and opportunities for input.

65In cross examination, the Applicant stated that he was aware from conversations with the Child’s mother in 2018 that there were child protection proceedings in progress. He states that both the Child’s mother and her lawyer assured him that the Child would be returned to her shortly. He states that he didn’t hear from the Child’s mother for much of 2018 in large part due to his work situation in the military and being out of communication. He states that he was never fully informed by the Child’s mother regarding child protection proceedings.

66The Applicant testified that he did have a brief conversation with the Child’s mother about taking the Child.

67The Applicant testified that he asked the Child’s mother about the seriousness of the situation, but that she downplayed the seriousness of the proceedings.

68The Applicant testified that at the time, his current partner did not have a lot of interest in the Child.

69The Applicant testified that his current living and health situation is different now, and he recently saw a court Application and received factual information that led him to realize the seriousness of the situation. He had been under the impression he wasn’t needed, but now realizing the seriousness of the situation, he wishes to offer support to the Child.

70With respect to his health situation, the Applicant indicated in his testimony that he has had recent surgeries, but didn’t provide any further details regarding this health concerns.

71In considering the “unique circumstances” that the Applicant describes regarding his work in the military and being out of communication for long periods of time, I find that the Respondent can not be held responsible for the Applicant’s unavailability or for the Child’s mother’s failure to adequately and fully inform the Applicant regarding the seriousness of the child protection proceedings. I further find based on the Applicant’s testimony that he was aware of the existence of child protection proceedings, and that the Child had been removed from the Applicant’s care. I find that the Applicant had ample opportunities between the time he was informed by the Child’s mother of the commencement of child protection proceedings in 2018 until the time of his Application in February of 2023 to make the Respondent aware of his interests in this matter, and to bring an Application before the courts for access to the Child. The Respondent cannot be faulted for the Applicant’s failure to do so.

72For the above reasons, issue 5 is dismissed.

Issue 6: The Applicant alleged that Respondent staff failed to hear his concerns related to their requests for his health information

73In his Application, the Applicant states, “New developments in my personal life regarding health care had presented itself, and as such I informed Miss Hedges requesting that a better effort be made to contact [the Child], however Miss Hedges was more inclined to press for my personal medical information even after I established a personal boundary.” The Applicant continues to state that he found this “disrespectful.”

74Based on the information in the Application and on the Applicant’s testimony, this issue revolves around the Applicant not being heard by the Respondent regarding the urgency of contact with the Child due to the Applicant’s medical conditions.

75In her Affidavit, Tracey Hedges stated that the Applicant shared with her in a February 2, 2023, conversation that he had two surgeries pending. In the same conversation the Applicant mentioned wishing for the Child to receive his Memorial Cross, which would be bestowed posthumously.

76In his testimony, the Applicant declined to provide any additional details regarding his medical condition.

77In her testimony Tracey Hedges stated that it was not her intent to be disrespectful of the Applicant and she explained in her testimony that she was asking for further medical details only to assess the urgency of the Applicant’s request for contact with the Child. In this conversation, the Applicant declined to provide the Respondent with any additional medical information regarding his medical conditions.

78In considering the evidence before me on this issue, I find that the Applicant has consistently been reluctant to share details of his medical condition with the Respondent. This is the Applicant’s right, however the Respondent cannot be faulted for failing to act on information that the Applicant didn’t share. Tracey Hedges did request additional information from the Applicant that would allow her to make an informed judgement regarding the urgency of the Applicant’s request for contact with the Child. The Applicant chose not to provide additional information.

79I find that there is no evidence of any intent on the part of Tracey Hedges to be disrespectful of the Applicant in her inquiries regarding his medical conditions. Although the Applicant clearly perceived Tracey Hedges as being disrespectful, I find that Ms. Hedge’s reasons for requesting more details from the Applicant with the motivation of determining the urgency of the Applicant’s request for contact are reasonable under the circumstances.

80For the above reasons, issue 6 is dismissed.

Conclusion

81While issues 1, 3, 4, 5 and 6 have been dismissed, I am empathetic to the Applicant’s desire to maintain a connection with his son. As noted above, neither the law nor the Act provide me with the authority to determine the correctness of the Respondent’s decisions in this matter and I have no jurisdiction to order access, such authority lies with the courts.

82The Respondent has stated to the Applicant that he has the right to pursue the issue of contact with the Child with the courts, but that this option will close once the Child’s adoption is finalized. The Respondent has also offered to attempt to facilitate mediation between the Applicant and the adoptive family regarding access, and has offered the Applicant the opportunity to provide input in to the Child’s social history. These are all options that the Applicant may wish to carefully consider.

order

83Issues 1, 3, 4, 5, and 6 are dismissed. Issue 2 is upheld, but as the Applicant has now received the reasons he was entitled to, there is no further relief I can Order, and no further Order is made.

confidentiality order

84Pursuant 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.