GNT v. Child and Family Services of Guelph and Wellington County, 2023 ONCFSRB 57

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

GNT Applicant

-and-

Child and Family Services of Guelph and Wellington County Respondent

DECISION

Adjudicator: Daniel McSweeney Date: July 11, 2023 Citation: 2023 CFSRB 57 Indexed As: GNT v Child and Family Services of Guelph and Wellington County (CYFSA s.120)

WRITTEN SUBMISSIONS

GNT, Applicant Self-Represented

Kawartha Haliburton Children’s Aid Society, Respondent Meghan Howe, Family Service Worker

INTRODUCTION

1The Applicant and the Child and Family Services of Guelph and Wellington County (the Respondent) entered into a final Settlement Agreement (the “Agreement”) dated April 17, 2023, in relation to a Mediation held on March 29, 2023. The Agreement represented a full settlement of all issues raised in the Application, received by the Child and Family Services Review Board (the “CFSRB”) on February 17, 2023.

2The Agreement consisted of 23 detailed Terms with an implementation date of June 30, 2023, and a compliance date of July 10, 2023. The Respondent provided detailed responses to the Terms in a letter dated June 29, 2023. The Applicant provided a letter outlining the reasons why he did not believe the Respondent complied with the Terms on July 10, 2023.

3In accordance with the CFSRB’s procedures, I will determine whether the Respondent has complied with the Agreement.

4The Applicant is the father of two daughters (the “Children”). In the instances where a Term refers to one of the 2 daughters, I will refer to the daughter as the “Child”.

DECISION

5After reviewing the documents before me, I find that the Respondent has met its commitments and obligations as set out in the Agreement and as required by the Child, Youth and Family Services Act, 2017 S.O. 2017, Chapter 14, Schedule 1 (the “Act”) in relation to 15 Terms. In addition, I find that the Respondent is not in compliance or is in partial compliance with 8 Terms.

6The reasons for my findings are as follows.

THE LAW

7The CFSRB found the Application to be eligible for review under section 120 of the Act. The Act outlines the rights of Applicants, the duties and obligations of Children’s Aid Societies, and the mandate of the CFSRB.

8Section 120(4) of the Act reads as follows:

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

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 119(1) as required under subsection 119(2).

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

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.

6. Such other matters as may be prescribed.

Subsection 120(7) indicates that: 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

9The Act does not require or permit the CFSRB to make a determination as to the clinical wisdom or validity of a decision made by a Society in any given situation under review by the CFSRB and for which the Society is giving its reasons under this section of the Act.

10In an allegation of non-compliance, an Applicant’s statement of disagreement or dissatisfaction with the reasons given by the Society does not negate or invalidate those reasons. As outlined below, the Applicant disagrees with many of the responses provided by the Respondent. I also note that several of the Applicant’s concerns regarding completeness and accuracy of records and disclosure fall outside the jurisdiction of the CFSRB and would best be addressed with the Office of the Information and Privacy Commission of Ontario.

11Rule 8.1 in the CFSRB Rules of Procedure indicates that the CFSRB may conduct hearings orally, in writing, or electronically by teleconference or video-conference. In deciding the format of the hearing, the CFSRB will consider:

a) Whether it is a fair and accessible process for the parties;

b) The costs and efficiency of the process;

c) The potential for a more expeditious resolution;

d) The convenience of the parties;

e) The consistency with the CFSRB’s mandate;

f) Whether facts or evidence may be agreed upon;

g) The estimated duration of the hearing;

h) Whether the issues for hearing are predominantly legal issues;

i) Whether oral testimony is likely to be needed;

j) Any objections to the format of the hearing.

ANALYSIS

12I found that I could decide the issue of non-compliance based on the detailed response provided by the Respondent, and the detailed allegations of non-compliance provided by the Applicant. A review in writing is an efficient and expeditious approach given that no additional evidence is needed for me to decide the matter.

Written Review of Terms of Settlement

Term 1: Why the Evidence Provided to Worker PC was not recorded on his file?

13In its response, the Respondent indicated that it did not know why former employee PC did not upload all the documents provided by the Applicant in the database. The Respondent indicated that it made all efforts to upload the documents provided by the Applicant into the database; however, it cannot say with 100% certainty that a document has not been missed due to the sheer number of documents.

14The Applicant indicated that the Respondent did not fully explain why the information was not uploaded.

15The Respondent had reported to the Applicant that Worker PC was no longer its employee. As such, if information was not recorded in the file regarding the uploading of documents or the failure to upload documents, the Respondent would be unable to provide an adequate answer to the question posed in the Term. This is what occurred in this case. The Respondent indicated that it did not know why the documents were not uploaded. While this response does not provide the Applicant with a satisfactory explanation, I find that the Respondent did provide a response to the Term as written.

Term 2: Verification of whether Worker PC encouraged the Children’s mother to report to police and attend hospital; and explanation for the Worker’s behaviour.

16The Respondent reviewed its files and could not find any evidence that Worker PC encouraged the Children’s mother to report to police and to attend the hospital. The mother attended the hospital as one of the Children was experiencing headaches, and she attended the police station to share her concerns. The local police contacted the Worker PC after the mother attended the police station.

17The Applicant disagreed with the Respondent’s explanation as he found that Worker PC did not keep accurate notes.

18I find that the Respondent has provided the Applicant with an adequate explanation based on the notes in the file. In this case, the Applicant simply disagrees with the Respondent’s review.

Term 3: Verification that Respondent staff received an OCL report regarding an incident with Child M; and the weight this report had on the Respondent’s verification findings.

19The Respondent indicated that it did not receive a report from the OCL until after the verification was made in relation to the August 2018 opening. The verification was based on interviews with the Children, a joint investigation with the police, interviews with the parents, and discussions with the school.

20The Respondent explained that verifications were determined on a balance of probabilities based on credible, trustworthy, and persuasive evidence. In relation to the opening, the Respondent verified harm based on its assessment of the evidence.

21The Applicant replied that he was interested in whether the Respondent retroactively reviewed the evidence after it had received a report from the OCL

22I find that the Respondent complied with this Term as it confirmed that no report was received from the OCL; and the verification was made before any OCL involvement; and therefore, it could not have weighed the evidence in its verification. In addition, I find that the Term did not specifically refer to a retroactive reassessment of the evidence related to the opening.

Term 4: Why Worker PC and Ms. C encouraged the Children’s mother to withhold access against the provision of a Court Oder and why was Ms. H unaware of this situation?

23The Respondent reported that staff determined that access with the Applicant was unsafe. The Respondent considered initiating a protection application; however, did not since the matter was already at Family Court. Ms. H (then Director of Service) was unaware of the decision as it would have been made between the Supervisor and Worker.

24The Applicant alleged that the Respondent failed to directly respond to the Term and he disagreed with the response and with the explanation regarding Ms. H’s knowledge of the issue.

25I find that the Respondent provided the Applicant with an explanation that access with the Applicant was deemed unsafe. In addition, the Respondent provided an explanation as why the Director of Service may not be aware of decisions made by supervisors and front-line workers.

Term 5: Allegations of adult conversations during access.

26The Respondent reported that Worker PC attempted to discuss issues with the Applicant before access visits. In addition, when adult issues were brought up, Worker PC asked the Applicant to step outside to discuss them further.

27The Applicant disagreed with the explanation as the Respondent relied on documentation by Worker PC which the Applicant found not to be reliable.

28The Applicant did not provide any specific examples of incidences where adult conversations were held in the presence of the Children to support his argument that the conversations happened which would undermine the Respondent’s assertion that such conversations did not occur. The Respondent reviewed its file and reported on the issue of adult conversations between the Worker and the Applicant before and after access visits. As such, I find that the Respondent has complied with this Term.

Term 6: Allegations of edited case notes.

29The Respondent explained the process of how case notes are entered and how they are locked after 24 hours. The response indicated: “As for some notes being entered beyond the 24-hour standard, this does happen at times due to competing caseload demands”.

30The Applicant indicated that the explanation was of little value.

31The Applicant was directed to provide specific dates in relation to records of concern. It appears that he did not provide such information; therefore, the response was general in nature. Given the lack of specific concerns identified by the Applicant, I find the general response complied with the Term.

Term 7: Why a letter regarding Worker PC’s advice to withhold access was not included in the file when the Applicant received disclosure.

32The Respondent indicated that several letters regarding the August 13, 2018, opening were sent to various parties. The Respondent indicated that a letter was sent on September 5, 2018, to the Children’s mother indicating that the Children should not visit their father. The Respondent believed that this is the letter that the Applicant referred to as dated September 15, 2018. This letter was included in the Respondent’s records and that disclosure was provide to the Applicant’s legal counsel, the OCL, and the Applicant in relation to CLRA proceedings. The content of disclosure depended on the requester.

33The Applicant outlined concerns with the accuracy and completeness of the Respondent’s records. He argued that the Respondent was non-committal on whether a letter was issued and/or filed.

34The September 5, 2018, letter was sent to the Children’s mother and addressed the issue of withholding access. Therefore, it is reasonable to assume that this letter was the letter referred to in the Term. The Respondent indicated that this letter was sent to the Children’s mother. The Respondent did not confirm that this letter was included in disclosure to the Applicant; however, the letter was not addressed to the Applicant and therefore it may not have been placed in his file, and therefore it would not have been included in any disclosure provided to him. It may have been included in disclosure to the various parties in the CLRA proceedings. As such, I find that the Respondent has complied with this Term.

Term 8: Why the Applicant’s concerns about parental alienation were not heard, and how the allegations impacted on investigations and verification findings?

35The Respondent confirmed that the Applicant’s concerns regarding parental alienation were documented in the Respondent’s records on numerous occasions under the custody and access conflict heading. Respondent staff and the Applicant have had numerous conversations on parental alienation. The Respondent grounded its findings on interviews. Staff were aware of and documented the Children’s concerns regarding their relationships with their parents, and staff had conversations with both parents on how to best support the Children.

36The Applicant indicated that the response did not explain how his allegation of alienation impacted the investigation and/or findings.

37I find that the Respondent has demonstrated that the allegations of parental alienation were heard. I concur with the Applicant that the response did not provide sufficient information for the Applicant to know how the allegations of parental alienation were integrated into any investigations and verification findings. As such, I find that the Respondent has not complied fully with Term 8.

Term 9: Why was the Applicant not informed of allegations that the Children’s mother had strapped one of her daughters to a chair; and why no investigation was launched based on the allegation?

38The Respondent reported that the Worker and Supervisor did not code the report in a way that required a child protection investigation because they believed that the referent did not believe the report was true; the mother’s denial and provision of a reasonable explanation; counselling services were being sought; and there was no previous history with the family. It was decided to initiate a Community Link with the mother. The Applicant would have been contacted if an investigation had been opened. The Respondent reported that it did not know why the Applicant was not informed of the Community Link.

39The Applicant argued that the response did not explain why he was not informed.

40The Respondent provided an adequate response in support of its position not to initiate an investigation. I find that the Respondent’s response regarding why it had not informed the Applicant of the report was insufficient as it hypothesized that the Applicant was not informed of the Community Link because the referral was not moved to investigation. I find that the Respondent has not complied with this component of the Term; however, I find that the Respondent could not identify a reason from its file review. As such, I will not order any further response to this part of Term 9.

Term 10: Why did Worker H not place documents alleging the abuse of the Children by their mother (coaching, alienation) on the file?

41The Respondent reported that Worker H was provided with a great number of documents, and she made every effort to ensure that the documents were uploaded in the file. It is possible that human error resulted in some of the documents not being uploaded.

42The Applicant indicated that the response did not explain why the file was incomplete regarding historical openings.

43The Respondent has indicated that Worker H made all efforts to upload the documents she was provided by the Applicant. Absent the identification of any specific documents that are missing from the file, I find that the Respondent has complied with Term 10.

Term 11: Why were the reports of one of the daughter’s history of lying not included in the investigation and how was her history of lying been factored into any investigation findings?

44The Respondent reported that the allegations of the Child’s lying have been documented in various times. The fact that a child has lied does not lead to a child protection investigation. Workers have a good understanding of child development and evaluate whether information gathered is credible and persuasive. The Respondent indicated that the records are unclear as to how significantly the Child’s reported lying factored into the Respondent’s decisions.

45The Applicant argued that the Respondent did not explain how Workers assessed this daughter’s history of lying when considering the allegations. He was concerned that workers readily dismissed the allegations that the Child’s mother strapped her to a chair; however, they did not easily dismiss the allegations the Child made against her father.

46The Applicant was asked to clarify the timeframe and provide evidence of the alleged lies. From the response, I gather that no specific timeframe and evidence was provided. Therefore, the Respondent had to rely on generalized statements. For this reason, I find that the Respondent did not have sufficient information before it to fully comply with Term 11; however, I will not order any additional response.

Issue 12: Explanation for delay in disclosure.

47The Respondent indicated that a request for disclosure was received on November 17, 2022. The request is being processed on a first come, first serve basis. The Respondent has limited resources to respond within a timely manner given its backlog.

48The Applicant indicated that it has been 234 days since his disclosure request and that the response time is not adequate.

49I concur with the Applicant that the Respondent has failed to provide a reasonable explanation for the delay in disclosing his records to him.

Issue 13: Alternative ways of handling November 2021 incident.

50The Respondent provided the Applicant with 2 specific suggestions regarding how he could have dealt with his daughter during the incident.

51The Applicant conceded that the Respondent has provided suggestions; however, he did not have confidence that the suggestions would have worked.

52I find the Respondent provided the Applicant with suggestions as included in Term 13.

Issue 14: Physical evidence of injuries and their impact on verification findings.

53The Applicant argued that, as a passenger in the car, his daughter could not have been struck on the right side of her face. The physical evidence is important to the verification.

54The Respondent indicated that the verification decision was not made based on any physical evidence of injury. Rather, the verification was based on interviews with both the Applicant’s daughters. It concluded that it was possible that a driver could have contact with either side of a passenger’s face.

55I find that the Respondent provided a reasonable explanation for its verification finding. It placed greater weight on the interviews with the 2 people who were in the car. As such, I find the Respondent has complied with Term 14.

Term 15: Were documents related to parental alienation authored by the Child’s counsellor reviewed by the Respondent and how did the documents impact on the Applicant’s allegations of parental alienation?

56The Respondent indicated that documents were uploaded when they were provided. The Applicant and Respondent staff have had many conversations around supporting ongoing relationships between the Children and both parents. Respondent staff took these conversations into consideration in working with the family.

57The Applicant argued that the Respondent did not address the term and made general comments about documentation. The response did not comment on how the documentation impacted on the findings.

58I concur that the Response failed to address the documents provided by the Counsellor and their impact on parental alienation. The Applicant was directed to provide these documents. It is unclear whether this was done or not. Nevertheless, I find that the Respondent has failed to provide a reasonable explanation to the Applicant about how the Applicant’s concerns regarding parental alienation (as outlined in the Counsellor’s documentation) have impacted on their verification findings.

Term 16: Why did the Respondent disregard evidence from medical and school files which supported the Applicant’s argument that one of his daughters was being alienated, and what was the impact of the evidence on the Respondent’s findings?

59The Respondent indicated that it has spoken to both parents regarding the impact on the Children of post separation conflict and has discussed strategies to reduce the negative impact. The most recent opening did not add or verify the code of post separation conflict which is the closest code to parental alienation. Worker H has worked with supporting the Children’s relationships with both parents.

60The Applicant indicated that the Respondent failed to address this Term. The Respondent did not address educational and medical records and parental alienation.

61I concur with the Applicant that the Respondent has failed to address the impact of the evidence provided on any examination of the issue of parental alienation.

Issue 17: Impact of parental alienation on the Children’s mental health, and resources and supports to mitigate the impacts.

62The Respondent provided a list of 5 mental health resources that could be accessed by the Children.

63The Applicant indicated that the responses did not address the particular issue of alienation.

64The Respondent has provided a list of general mental health resources which can provide a range of counselling options. The Applicant could have benefitted from a more nuanced response regarding specialized resources to deal with parental alienation. As such, I find the Respondent partially complied with Term 17.

Term 18: Weighing of contradictory evidence from the Counsellor and impact on verification findings.

65The Respondent indicated that the Counsellor was the referral source and an investigation was initiated. The Respondent verified Physical Force and/or Maltreatment by the Primary Caregiver. The information from the Counsellor may have been considered; however, the Respondent placed greater weight on the statements provided by the Applicants two daughters. Corroborative evidence is not used as standalone evidence.

66The Applicant argued that the Respondent should have taken into consideration the evidence related to parental alienation from the Counsellor.

67I find that the Respondent has complied with the Term as it has provided its rationale for the finding as well as its rationale for placing greater weight on the statements by the Children, rather than on reports from collateral sources.

Term 19: Weighing related to allegations and evidence of coaching by the Children’s mother.

68The Respondent has documented the Applicant’s belief that allegations were fabricated, and the Child has been coached. The Respondent relied more on the interviews with the Children. The Respondent also considered the interviews with both parents.

69The Applicant indicated that the Respondent did not address how it dealt with the allegations of coaching and collusion.

70I concur with the Applicant that he has not been provided with an adequate explanation as to how staff factored into the analysis allegations that one of the Children had been coached and the allegations against him had been fabricated.

Terms 20 & 21: No Non-Compliance Allegations

Term 22: Reunification services for one Child.

71The Respondent indicated that it has a clinical support team who could work on reunification if the Child remains in the jurisdiction and if she is willing to be involved in reunification.

72The Applicant indicated that the Respondent had not complied as it provided a general comment on reunification rather than identifying specific organizations that can provide reunification services.

73I find that the Respondent complied with the Term as the term focused on the Respondent’s role in reunification. The Respondent may wish to provide the Applicant with additional resources in the jurisdiction that can support reunification.

Term 23: Resources and supports to mitigate adult conflict related to post-separation.

74The Respondent provide the Applicant with a list of 3 organizations in the community for continued counselling and support to reflect on the Applicant’s actions and responses.

75The Applicant indicated that the Respondent complied with this Term in a general sense, but he did not believe that the resources are specific to mitigating post-separation adult conflict and their impact on the Children.

76I find the Respondent complied as it provided the Applicant with a list of counselling resources. One of the resources specialized in family and child psychology and the other provides a variety of services aimed at children, family and parenting, relationship improvement, emotional regulation, and trauma counselling.

77For these reasons I find that the Respondent has complied with Term 23.

SUMMARY

78After having reviewed the response and allegations of non-compliance, I have found that the Respondent has complied with Terms 1, 2, 3, 4, 5, 6, 7, 10, 13, 14, 18. 20, 21,22, and 23. The Respondent has not complied with Terms 8, 9, 11, 12, 15, 16, 17, and 19.

ORDER

79I direct that the Respondent provide the Applicant with the following on or before August 8, 2023.

1. In relation to Term 8, the Respondent will provide the Applicant with an explanation of how the Applicant’s allegations of parental alienation were integrated into its investigations and verification findings.

2. In relation to Term 15, the Respondent will review the file to determine if any documents from the Counsellor which speak about parental alienation have been uploaded. If the documents were placed on the file, the Respondent will explain how the review of the documents impacted on any of the verification findings.

3. In relation to Term 16, the Respondent will address the impact of medical and school records provided by the Applicant on its verification findings.

4. In relation to Term 17, The Respondent will provide the Applicant with a list of counselling services with expertise in parental alienation.

5. In relation to Term 19, the Respondent will provide a response regarding how it considered the Applicant’s allegations of coaching and collusion by the Child’s mother has impacted its verification findings.

80In relation to Term 12, the Applicant has not been provided disclosure since his request of November 17, 2022. This falls well short of the Information and Privacy Commissioner’s direction for service providers to respond to access requests pursuant to Part X of the Act within 30 days. Many of the Applicant’s concerns addressed in the mediation process could have been resolved through timely and complete disclosure as this would have assisted the Applicant to understand whether her was heard and whether he was provided with adequate reasons for the Respondent’s decisions. Given the CFSRB’s intervention in the Applicant’s case, the Respondent is directed to disclose to the Applicant his file (with required redactions) on or before September 11, 2023.

81The file will be closed after the CFSRB receives the Respondent’s responses.

CONFIDENTIALITY ORDER

82Pursuant 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.

Dated at Toronto, July 11, 2023.

Daniel McSweeney

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Daniel McSweeney Member