DO v. Kenora Rainy-River Districts Child and Family Services, 2024 CFSRB 64

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

DO Applicant

-and-

Kenora Rainy-River Districts Child and Family Services Respondent

DECISION

Adjudicator: Lise Henrie Date: May 31, 2024 Citation: 2024 CFSRB 64 Indexed As: DO v Kenora Rainy-River Districts Child and Family Services (CYFSA s.120)

APPEARANCES

DO, Applicant Self-represented

Kenora Rainy-River Districts Child and Family Services, Respondent Joanne Clouston, Counsel

OVERVIEW

1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched.1, (the "Act"). The Applicant submits that the Kenora Rainy-River Districts Child and Family Services (the Society) did not give him a chance to be heard with respect to his concerns for his child and refused to proceed with his complaints from 1994 to 2000.

ISSUES

2The Child and Family Services Review Board (CFSRB) found that the following allegations were eligible to proceed:

• 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 (section 120(4)4 CYFSA, 2017).

RESULT

3The Application is granted.

4While I find that there was communication between the Society and the Applicant, I do not find that the evidence shows that he was truly heard by the Society.

ANALYSIS

Context

5The Applicant is the father of a male child born in 1992 (the child). He testified that he was not married to the child's mother (K) and did not see his child in his first year. He said that he petitioned the court and was given visitation.

6The Applicant testified that there was violence in the home where his child lived with his mother. He said that from 1994 to 2000, he raised his concerns about his child's well-being with the Society. He said that the child had belt marks on his back, that he found him in soiled underwear, and he provided evidence of this to the Society through photographs and a medical report. He also said that he had concerns about his son's behaviour.

7The Applicant said that K had three other children and that eventually her children had to be taken from her. He said that she did not have a steady home, had had a drug bust in her home, had been charged with impaired driving and had been seeing a known sexual predator. He said that despite this, the Society left the child in her care. He said that when she married in 1997 or 1998, she was considered to have a stable home and was given custody of the child.

8The Applicant submitted that the Society case worker on the file had issues with men and he was of the view that she would not believe him when he raised his concerns. He said that because of this, the Society did not act and left his child at risk. He said that he spent a lot of time and money on trying to help his son out of a violent home.

9The Applicant testified that the Society brought the child to him in October 2000. He said that he then had to spend additional time and money to confirm his custody of the child with no assistance from the Society.

10The Applicant said that because of the Society's failure to act on his concerns in 1994, his child's life was ruined. He said that as of the date of the hearing, his son is not doing well and has to rely on government benefits for income.

Communications from 1994 to 2000

11The Society's witness has been employed with the Society since September 2000. She stated that her affidavit evidence and testimony is based on a thorough review of the file. She said that she could not provide any clarification as to why the child remained in his K's care until October 2000. She said that she could not speculate as to why the Society did not remove the child from K before then. She said that the legislation was different then, as were the Society's standards.

12The witness's affidavit provides 140 accounts of communications between the Applicant and the Society. The first is from February 14, 1994, where the Applicant contacted the Society alleging that K was physically abusing his son. The affidavit indicates that the case was closed at intake.

13The affidavit sets out several other complaints by the Applicant, including an allegation K's partner abused the child in January 1995. This allegation was restated five days later when the Applicant said that the child told him that K's partner hit him on the head. The Society closed the file "as there was not a disclosure made by (the child) regarding physical abuse, no protection concerns were noted." I note that the child was about 2.5 years old at that time. While there is no doubt that the child's views are important, I find it surprising that the Society would base its decision on something a child of that age said or did not say. The Society attributed the behavioural problems to the high level of conflict between the Applicant and K.

14The Affidavit also shows that the Police contacted the Society in December 1995 saying that the Applicant had contacted them about the child's well-being. The Police confirmed that there had been domestic disputes between K and her partner and that the partner had been charged with assault on K in November 1995.

15In May 1996, the Society receive a call from a community member reporting concerns that the child who was not yet four years-old was being left alone for an extended period of time unsupervised.

16On June 12, 1996, the Society received a call from the police services report concerns that the child was seen wandering around the neighborhood unsupervised at various times of day/night. Yelling and screaming from K's home was also reported but it appears that despite K and her partner acknowledging domestic disputes, and despite the Applicant's mounting concerns, the Society did not remove the child but imposed terms on K and her partner (weekly home visits, attending counselling).

17There are several other accounts of the Applicant's concerns being reported to the Society, including several other allegations of abuse and concerns about K's ability to parent given alleged drug and alcohol use, as well as allegations that K was alienating the child from the Applicant.

18The entry for March 3, 1998, shows that the Applicant called the Society to discuss three years of issues in which the Society did not engage. In preparing the affidavit, and documenting the file, it was deemed necessary for the Society to note that the Applicant "then hung up on the worker." I find that this shows that the communication between the Applicant and the Society was not ideal and that the Society was taking note.

19The evidence suggests that the Society, then and now, appears to have found it difficult communicating with the Applicant. It also suggests that the Applicant also found it difficult to communicate with the Society and even contacted another society in May 1998 to say the that the Society was "not doing their job". The evidence suggests that the Society did hear the Applicant and did follow up with some investigations, but it is not clear from the evidence why decisions were made not to pursue the investigations. For example, in July 1999, the Applicant complained to the society that the child's underwear was soiled. The affidavit indicates that the Society discontinued their investigation as the Society interviewed K and she advised the society that the child had a bath before visiting the Applicant. There are no other indications as to why the investigation was terminated. This suggests that the Society took K's word over the Applicant's, despite five years of allegations from the Applicant. There was no direct evidence which supports a finding of gender bias on the part of the Society, however, this may help explain why the Applicant felt that the Society prioritized motherhood over parenthood.

20In October 2000, the child's paternal grandmother contacted the Society to say that the child told her that he was spanked for soiling his pants. The Society met with the child at school and he "disclosed being physically abused by both his mother and her husband. Subsequent bruising was found on (the child)." After more than six years of complaints by the Applicant, abuse was verified and the Applicant became the child's primary caregiver.

Did the Society give the Applicant a chance to be heard?

21I find that the evidence does not provide clarity as to why the Society did not investigate some of the allegations made by the Appellant, nor why it ended its investigations. Some of the reasons to stop investigating (such as no disclosure from a two-and-a-half-year-old child) are difficult to understand. The Society has not provided enough information to explain why the investigations into the allegations were discontinued or were not explored further, however, given how much time has gone by, it may be difficult at this point to get those answers.

22As noted in P.O. v. Family and Children Services Niagara, 2012 CFSRB 38:

[14] 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.

[15] 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 that her concerns are taken seriously and dealt with thoroughly.

23The Society's witness said that she empathized with the Applicant in his feelings of helplessness. She said that unfortunately nothing could be done to change things. At the time of the hearing, the Society was in the process of providing the Applicant with access to the file relating to the child from 1994 to 2000 (redacted in accordance with Part X of the Act).

24I find that the evidence shows that while there was communication between the Society and the Applicant much of which is documented in the Society witness's affidavit, the Society's decisions to leave the child in the care of K for so many years suggests that the Applicant was not truly heard.

25Further, from the evidence before me, I find that the Applicant was not given sufficient information regarding the factors the Society considered to allow him to understand why and how decisions were made.

26My remedial powers in this matter are set out 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;

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

(e) dismiss the complaint.

ORDER

27I find that the Society's disclosure of the 1994 to 2000 file, as indicated in paragraph 23, is appropriate and order that file to be provided to the Applicant within 30 days of this order in the format preferred by the Applicant.

28In addition, I order the Society to provide the Applicant with any other file referring to the Applicant or to the child when he was a minor from 1994 to the date of the hearing within 30 days of this order, in the format preferred by the Applicant.

29I note that pursuant to section 120(7), the CFSRB has no ability to order an apology however I note that the Society's witness offered a personal apology to the Applicant during the hearing and while the CFSRB cannot order a broader apology, I encourage the Society to consider whether one is appropriate.

CONFIDENTIALITY ORDER

30Pursuant 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, and order that the file be provided to the Applicant within 30 days of this order.