M.D. v. CAS of Northumberland, 2007 CFSRB 37

CHILD AND FAMILY SERVICES REVIEW BOARD

M.D.

v.

Children’s Aid Society of Northumberland

REASONS FOR DECISION ON MERITS

Date: August 10, 2007

Citation: 2007 CFSRB 37

Indexed as: M.D. v. CAS of Northumberland (CFSA s.68)

Related Decisions: Reasons for Decision on Jurisdiction - M.D. v. CAS of Northumberland (CFSA s. 68), 2007 CFSRB 15

1The Applicant filed an application with the Child and Family Services Review Board, (the “Board”), on February 22, 2007, pursuant to Section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”).

2The Applicant complained that the Children’s Aid Society of Northumberland, (the “Society”), had refused to proceed with his complaint and that the Society had failed to provide him with reasons for a decision that affected his interests.

3The application was determined to be eligible on March 7, 2007, and a pre-hearing conference was heard on April 4, 2007. At the pre-hearing conference, the Applicant and the Society clarified their positions on the application. The Society identified that it would be challenging the jurisdiction of the Board.

4The Society identified that it would be using Subsection 68.1(8) of the Act to argue that this issue is before the Ontario Court of Justice, and that the Board does not have jurisdiction to hear the complaint. A custody and access matter is currently before the Ontario Court of Justice.

5The relevant provisions of s.68.1 provide as follows:

68.1(1) 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 68 and make the complaint directly to the Board under this section; or

(b) where the person first makes the complaint to the society under section 68, submit the complaint to the Board before the society's complaint review procedure is completed. 2006, c. 5, s. 26

(4) 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 68(1) as required under subsection 68(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 clause 2(2)(a).

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. 2006, c. 5, s. 26.

(8) The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court; or

(b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995. 2006, c. 5, s. 26.

6In addition, the Society indicated that it would argue that the Applicant submitted his application to the Board before he had submitted a written complaint to the Society, and thus, it was impossible for the Society to have refused to proceed with a formal complaint pursuant to subsection 68.1(4)(1) of the Act, quoted above.

7The Board heard the Society’s motion in Port Hope on April 25, 2007. The decision on the motion was issued on May 11, 2007 as follows:

• The Board finds that the Applicant has the right to make a complaint directly to the Board under Section 68.1(1)(a), where the matter is described in Section 68.1(4), that is, a complaint against the Society regarding its procedures.

• The Board finds that the Applicant’s complaint, that the Society failed to proceed with his complaint, cannot proceed before the Board because the Applicant did not file a complaint with the society.

• The Board finds that the Applicant’s complaint, that the Society failed to provide the Applicant with its reasons as to why his children are not at risk, can proceed before the Board because it is not an issue that has been decided by the Court for the following reasons:

i. In this case, the issue to be determined is whether the Society has failed to provide the complainant with reasons for its decision that his children are not at risk. This affects the complainant’s interests.

ii. It is the Board’s opinion that this issue is not before the Court on the custody and access application.

iii. It is also the Board’s opinion that child protection issues are different from custody and access issues in that the issues of safety and protection for children require a more urgent and timely response, and fall under the responsibility of the Society, and cannot await determination in a custody and access proceeding that may take months to resolve.

iv. The Board is therefore of the opinion that the Applicant has the right to have his application heard under subsection 68.1(4)5.

8For these reasons, the Board denied the motion of the Society and determined that it would proceed to hear the application relating to the complaint that the Society has failed to explain to the Applicant why it decided that the Applicant’s children are not at risk.

HEARING

9At the hearing, held on July 26, 2007 in Port Hope, the Applicant represented himself. The Applicant’s subpoenaed witness did not appear. The Society was represented by Christopher Rous, counsel. Also present was S.B., Society supervisor, who provided oral testimony.

10The Applicant testified on the following issues, summarized below:

• The Society did not give proper reasons as to why it did not do anything further with regard to the alleged suicide note written by his children’s mother. He would have expected the Society to look deeper and not “brush off” the issue. He was never informed of the Society’s conclusion with regard to that issue.

• He has raised the issue with the Superior Court with regard to the custody and access hearing.

• On June […], 2007, he met with the Society; the Society provided answers for other issues of concern to him which were clearly explained.

11The Applicant now asks that the Society provide a better explanation regarding the alleged suicide note; this is his only present concern.

12The witness for the Society testified that:

• On February […], 2007, the day the Applicant was given the alleged suicide note, the Police and the Society were called to the daycare centre where the Applicant had gone to pick up his children. The Police allowed the children to leave the daycare centre with their mother, although it was the Applicant’s scheduled day to take the children home.

• On March […], 2007 the Applicant met with the Society supervisor and expressed concern about bruising on the children, although no bruises were seen by the Society representative. The Applicant also expressed concern about the mother’s feeding of the children. He expressed further concerns about drug use by the mother and about the Society’s letter of December […], 2006 to the mother. The Society acknowledged that it could have been more careful in its letter writing. The Society expressed concern about conflict between the parents in the children’s presence.

• The Society remains involved with the children. The Applicant has no contact with the children’s mother, as he was charged previously with assault.

• On June […], 2007, the Applicant met with Society representatives in an attempt to resolve the Applicant’s complaints. The following issues were discussed:

i. The alleged use of drugs by the mother and the wording of the Society letter of December […], 2006. The Applicant acknowledged that, after investigation of the mother’s drug use by the Society, he had no further concerns.

ii. An ear infection of the younger child.

iii. The younger child’s development with regard to speech and potty training. The Society indicated that a child development facility is involved with the family. The reports are not sent to the Applicant; the absence of communication between the parents leads to difficulties in co-parenting.

• The issue of the alleged suicide note was not raised by the Applicant as a concern.

• The Applicant indicated that he was prepared to work with the Society and seemed satisfied with the outcome of the meeting. A tape was made of that meeting; a copy of that tape was not provided to the Society by the Applicant, as promised.

13The Society submitted that this hearing is concerned with one particular issue, the alleged suicide note. The Society submitted that the evidence before the hearing indicated that this was a matter for which clarification was not requested by the Applicant at the two meetings. The Society was not asked for, and did not give clarification, regarding this matter.

14The Society requested that this application be dismissed by the Board.

ANALYSIS

15The issue before the Board is whether the Society has failed to provide the Applicant with reasons for a decision that affects his interests pursuant to Section 68.1(4)5.

16The Society met with the Applicant on June […], 2007. At that time, the Applicant raised three issues which were addressed by the Society. The Applicant expressed satisfaction with the answers provided, related to those three issues.

17The issue of the alleged suicide note written by the children’s mother was not raised by the Applicant at the meeting, nor was it addressed by the Society. However, the issue of the alleged suicide note was a part of the Applicant’s complaint to the Board, dated March 23, 2007. The alleged suicide note had raised serious concerns for the Applicant about the state of mind of the children’s mother and about the children’s safety. The Board concurred that the note could have been interpreted as a suicide note.

DECISION

18The Board acknowledges that the Applicant has had the opportunity to have his complaint heard by the Society. He has had two meetings with the Society to address these issues. The Board acknowledges as well that the Society, in their meetings with the Applicant, has provided explanations for the concerns raised by him.

19However, the Board is of the opinion that even though the Applicant did not raise the issue of the alleged suicide note at the meeting of June […], 2007, given the seriousness of the concerns engendered by the alleged suicide note, the Society should have provided the Applicant with reasons for its decisions with regard to their follow-up actions related to that note. This would have ensured that the Applicant had been provided with all the reasons for a decision which affects his interests.

20Therefore, pursuant to Section 68.1(7) of the Child and Family Services Act, the Board orders the Society to provide written reasons to the Applicant, related to its decisions regarding the alleged suicide note, within three months of the date of the issuance of this decision, with written confirmation to the Board on that same date.

Celia Denov Presiding Member

John Gates Board Member

Fizul Sima Board Member