CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
ES
Applicant
-and-
Family and Children’s Services of Frontenac, Lennox and Addington
Respondent
DECISION ______________________________________________________________________
Adjudicator: Lise Henrie
Indexed As: ES v Family and Children’s Services of Frontenac, Lennox and Addington (CYFSA s.120)
APPEARANCES
ES, Applicant
Self-represented
Family and Children’s Services of Frontenac, Lennox and Addington, Respondent
Ayana Hutchinson, Counsel
INTRODUCTION
1This is an application filed on May 25, 2023, under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Schedule 1 (the “Act”).
2The Child and Family Services Review Board (“CFSRB”) examined this application and ruled on September 11, 2023, that the CFSRB has the jurisdiction to examine three of the four questions or concerns set out by the applicant in his application:
- The applicant asserts that support worker M showed prejudice toward him, to his former partner’s benefit, by trying to obtain information that would be damaging to his capacity to raise the children and by writing a letter to the Court in support of his former partner;
- The applicant declares that his attempts to communicate with M (emails, telephone calls) and AR were not taken into consideration or that they were ignored;
- The applicant asserts that M infringed on his right to receive services in French.
3The CFSRB also determined that it does not have the jurisdiction to examine a fourth question submitted to the Court, under subsection 120(3) of the Act.
HEARING
4The hearing took place on Zoom. The applicant represented himself and was his only witness. The respondent presented a witness, M, the support worker who dealt with the applicant’s case file.
BACKGROUND
5The applicant is the father of four children (the “children”) who are all now of school age. The respondent (the “Society”) had been involved in this family’s life since an initial incident reported by the applicant in 2019.
6It is the second case file opened by the Society that raises more concerns for the applicant. The applicant testified that he did not have the opportunity to be heard in the decisions concerning his children, contrary to paragraph 120(4) 4 of the Act, and that he did not receive an explanation of the reasons leading to the decision to remove his children from the family home, contrary to paragraph 120(4) 5 of the Act. He also noted that his communications with the Society could not always be conducted in French.
7The applicant and the mother of the children are now divorced. The Society’s case files concerning the family are now closed, but the applicant testified that his relationship with his children has been significantly affected by the Society’s interventions.
ANALYSIS
Applicant’s complaint – November 2019
8The applicant testified that in November 2019, he sought shelter for himself and his children at the police station because he claimed to be the victim of extortion on the part of his wife. According to the applicant, his wife had mental health problems and he was worried about the impact on his children. He said he was referred to a victims’ services centre and that a support worker, B, was assigned to the case by the Society. He said that the Society did not meet with him or his ex-wife and that the case file was closed. The applicant testified that he did not understand what the Society did with his complaint concerning his ex-wife. He said that he received a letter dated February 18, 2020, written in English, closing the case file. He did not understand why the case file was closed because the letter simply stated that no concern had been verified.
9In her testimony, support worker M explained that support worker B was responsible for the case and had concluded that the applicant’s concerns had not been verified and the case file was closed. She explained that these decisions are not made by the case support worker alone, but after internal consultation.
10I find that the reasons for closing this case file are not sufficiently clear in this situation. The applicant’s testimony presents evidence that there had been aggressive behaviour on the part of the person who was his wife at the time. Nor do I understand why the Society wrote its letter in English, because the applicant said that he had requested services in French.
The ex-wife leaves with the children – September 2021
11The applicant testified that on September 1, 2021, his ex-wife left the family home with the four children while he was at work. He said that he learned that the Society had helped his ex-wife flee when he reported what he described as the abduction of his children.
12The applicant raised allegations of a lack of impartiality, non-communication (being heard) and infringement of his right to services in French in both cases, but these questions are more thoroughly examined in the review of the second case file. The two first allegations rely on similar facts and have therefore been dealt with together.
13The applicant alleges that M demonstrated partiality toward his ex-wife by failing to hear him in a timely manner concerning decisions that involved him, by trying to obtain information that would be damaging to his capacity to raise the children and by writing a letter in support of his ex-wife which was used in Family Court.
14On September 1, 2021, the applicant’s ex-wife left the family home with the children. According to the applicant’s testimony, the Society was in communication with the ex-wife for about six months before she left and paid for the accommodations. He said there were no meetings with the four children before September 1, 2021. He testified that he was surprised to see that the Society had been involved since April 2021 and that he had not been aware of this before his ex-wife left the family home with the children in September 2021. According to his testimony, the applicant is of the opinion that the Society acted without sufficient evidence, because he says that he did not have the opportunity to give his point of view.
15In his cross-examination of M, the applicant asked her to confirm how long she had been taking care of the family’s case file. M said she had been on the case since April 2021, or five months before the applicant’s ex-wife left with their children. M said that she had been in contact with the ex-wife about three to five times during that period. When the applicant said that he had recordings of conversations that suggested, in fact, some thirty communications during that period, M said that it was possible. M’s testimony confirmed that the Society provided financial assistance for accommodations for the ex-wife and the children on September 1, 2021.
16Support worker M testified that the Society had identified a concern of intimate partner violence. She explained that domestic violence is not just physical but may include psychological abuse, controlling behaviour and financial exploitation. She testified that the Society had verified the presence of violence and that the children had witnessed arguments between the applicant and his ex-wife.
17M testified that she left a message for the applicant in July 2021 but that neither M nor the applicant followed up. I note that this call took place about three months after the case file was opened and that no other follow-up was done with the applicant before the Society helped the ex-wife leave the family home.
18The applicant stated that his attempts to communicate with M (he mentions many emails and phone calls) and with another employee at the Society were ignored. The applicant stated that he received no response to many of his emails.
19With regard to the applicant’s consultation before the children were removed from their home, I note that the Act states in subsection 15(2) that “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.”
20The Act provides an exception in subsection 15(3): “Subsection (2) does not apply to a child or young person or parent of a child or young person if there is good cause for not giving that person an opportunity to be heard or represented as described in that subsection.”
21The applicant testified that he spoke with M for the first time on September 7, 2021, or about one week after the Society facilitated the departure of the ex-wife and the children, to set an initial meeting and that he met her on September 9, 2021, in the Society’s offices.
22The applicant said that one of his children was admitted to hospital on September 22, 2021, for the third time in 22 days. He said he went to the hospital to be with the child while his ex-wife took care of the other three children. When his child was discharged from the hospital, he went to stay with the applicant until the end of February 2022.
23A second meeting was held on September 27, 2021, at the applicant’s home. This meeting was to talk with both the applicant and the child who was residing with him. It was the first time that M had met this child. M said that she did not have concerns about the child’s protection. The child stayed at the father’s home for a few more months following this meeting.
24The applicant said that an application request heard by the Family Court in December 2021 did not deal with parental time, so there was no indication for him that there was a problem. I find that this evidence does not support a determination that the exception in subsection 15(3) of the Act should apply. On the contrary, less than a month after the children were removed from the family home, the applicant was asked to take care of one of his children, specifically a child who required health care.
25Support worker M testified that she completed her investigation by speaking to the ex-wife and the other children. She said that she discussed the case with her supervisor and that they concluded that the difficult relationship between the parents was having harmful effects on the children. Furthermore, she said that the Society had had regular contact with the health care and education professionals who were in contact with the children since the case file was opened.
26The applicant testified that a letter that M wrote to the ex-wife in February 2022 was used in their case before the Family Court. Support worker M said that the letter had been provided at the ex-wife’s request, and that while writing the letter, M was aware of the proceedings involving the couple before the Family Court. That letter stated that a case file had been opened by the Society the year before because the ex-wife was the presumed victim of intimate partner violence, the children had been exposed to that violence and the violence had a negative effect on them.
27The applicant testified that when they went to Family Court, the ex-wife provided her letter and the judge asked him where his letter was. He said that the Court ordered him to return his son to the ex-wife through the police. He said that the order entrusted primary custody of the four children to the ex-wife, who was represented by a lawyer. He said he represented himself, and that he was given only supervised parental time once a week. In his testimony, he attributed the Court’s decision to the letter provided by M. According to the applicant, this evidence suggests that the Society’s actions had an impact on the determination of the parental responsibilities. This evidence also demonstrates that the ex-wife had support from a legal advisor, from the Society, while the applicant was trying to navigate the system alone.
28In her testimony, M said that she had no concerns about the applicant’s capacity to take care of the children now that he is no longer in the same household as his ex-wife. M testified that the risks to the children were no longer present since the applicant and his ex-wife have separated. She said that there were no concerns about the applicant’s capacity to take care of his children.
Hospital visit – March 2022
29Around March 22, 2022, the applicant went to the hospital with one of the children because there were marks of physical violence on his body. The child said that his mother had hurt him. The doctor ordered X-rays of both arms and made a report to child services. According to the Society, the investigation showed that the child had injured himself playing with his brothers. A letter confirming that the Society had no concerns was sent to the ex-wife on April 1, 2022. This letter demonstrates the speed of communication with the ex-wife. The applicant testified that he was the victim of parental alienation and that the Society had played a role.
30M said that the Society closed the last case file concerning the family on December 15, 2022. The applicant received a letter to this effect in February 2023, but that given everything that happened in the family since April 2021, the letter did not provide enough information for the applicant.
Remedy
31In the process of this review, the Society disclosed documents that should help the applicant better understand the reasons for certain decisions it made, but this does not replace the Society’s obligation to provide clear reasons.
32In light of the evidence, it is clear that communication with the applicant was limited, especially during the period from April to September 2021, and certainly far less frequent than with the ex-wife. This leads to a perception of favouritism, which is difficult to justify because, ultimately, the Society had no concerns about the applicant’s capacity to take care of the children.
Right to services in French
33The applicant asserts that M infringed on his right to receive services in French. Section 16 of the Act provides that:
Service providers shall, where appropriate, make services to children and young persons and their families available in the French language.
34According to the applicant’s and M’s testimonies, it seems that the applicant had access to certain services in French, but that there were shortcomings, especially with regard to communications in the second case. He confirmed that he could speak French to support worker B, who took care of his first case and who also helped with the second case, as well as the receptionist, I, who answered calls to the Society.
35The applicant said that he asked to speak to a Francophone support worker several times during the second case. M testified that a Francophone support worker had been assigned to speak to him, but according to the applicant, that was not the support worker who was in charge of the case because, according to the applicant, M did not want to transfer the case to a support worker who spoke French. He said that this put him at a disadvantage in his communications with the Society and ultimately in his relationships with his children. The testimonies confirm that the main support worker on the second case was M and that she does not speak French. The applicant was therefore unable to speak in French with the main support worker who was in charge of the case concerning him. The Board notes, however, that the applicant said that the letter dated February 6, 2023, was written in French. As mentioned, however, there is little in terms of reasons in it, and the letter underscores the support for the ex-wife and takes a somewhat moralizing tone with regard to the applicant.
Conclusion
36Given the jurisprudence on the sufficiency of reasons cited above, I believe that the Society’s communications did not provide the applicant with sufficient reasons for him to understand its decisions, including why he was not consulted to the same extent as his ex-wife, and that the Society did not offer him the French services appropriate for his situation.
37With regard to the remedy, the Board agrees that the information provided by the Society through the disclosure for this hearing made up certain shortcomings, but not all of them.
38My powers of remedy in this case are limited to the options provided for in section 120(7) of the Act:
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 or with any other requirements under this Act;
(d) order the Society to provide written reasons for a decision to a complainant;
(e) dismiss the complaint; or
(f) make such other order as may be prescribed.
39The Act does not authorize the Board to rule on the validity of decisions made by the Society. In J.M. v. Durham Children’s Aid Society, 2014 CFSRB 72, however, the Board stated in paragraph 20 that 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 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.
ORDER
40It has been found that the Society did not hear the applicant’s concerns and did not provide him with the reasons for a decision that affects his interests; the corrective power of the Board is limited to ordering the Society to provide the written reasons for this decision. I believe that such an order is appropriate in this instance.
41I am of the opinion that the Society did not provide the applicant with satisfactory reasons justifying its decision to close the case files in each investigation. It merely informed him that the investigations had been closed and that the reported problems had not been “verified” in the cases he brought forward. This term is not clear for a parent. The J.M. v. Durham Children’s Aid Society test (see above) was not met.
42Within 30 days of the date of this decision, the Society must provide the applicant with the following documents, in French:
a) A general explanation of the operation of a protection investigation – calendar, coding, how and why it comes to a conclusion, how and why it decides whether to open the case for ongoing monitoring or to close it, what “risk” means in the context of child protection, what verification means and which factors are taken into account to arrive at a verification decision, and what the procedure is for providing feedback to the person who made the report.
b) A clear and comprehensible explanation of its decision to close the 2019 case file in February 2020, including the specific factors that were considered.
c) A clear and comprehensible explanation of the decision to provide financial assistance for accommodations to his ex-wife on September 1, 2021, including enough detail to understand how this decision was made without consulting him.
d) A clear and comprehensible explanation of the closure of the case file related to the marks identified on March 22, 2022. This explanation must include the measures taken by the support workers responsible for the investigation and the factors taken into consideration to close the investigation despite the applicant’s questions.
e) A clear and comprehensible explanation concerning what the Society heard and took into consideration concerning the applicant’s concerns about parental alienation.
f) A clear and comprehensible explanation of the closure of the case file on December 15, 2022.
CONFIDENTIALITY ORDER
43In accordance with rules 9.3 and 9.4 of the CFSRB Rules of Procedure, the parties and their representatives cannot use, distribute, discuss or disclose any CFSRB document or decision or any other document or information obtained or used in this application with anyone, including through the media or online. The CFSRB only permits the use of this information for proceedings before the CFSRB, except with the authorization of the CFSRB or the Court, based on the circumstances.
Signed in Ottawa, April 17, 2024.
Lise Henrie
Lise Henrie
Vice-Chair