J.L. v. The Children's Aid Society of Haldimand and Norfolk, 2008 CFSRB 11

CHILD AND FAMILY SERVICES REVIEW BOARD

J.L. v. The Children’s Aid Society of Haldimand and Norfolk

REASONS FOR DECISION ON MERITS

Date: February 28, 2008 Citation: 2008 CFSRB 11 Indexed as: J.L. v. The CAS of Haldimand and Norfolk (CFSA s.68)

INTRODUCTION

1On September 18, 2007, the Child and Family Services Review Board (the “Board”) received an application from the Applicant regarding a complaint against the Children’s Aid Society of Haldimand and Norfolk (the “Society”) pursuant to Section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”). The Applicant complained that the Society had incorrect information about him in their files, that it wrongly believed him to be guilty of a crime he did not commit, and that it would not permit him to see his children.

2The Board held a hearing on January 9, 2008 in Burlington, Ontario. The Society argued in a preliminary motion that the Board did not have jurisdiction to hear the Applicant’s complaint on the grounds that all of the matters raised by him are subject to another decision-making process under the Act, as provided for in Section 68.1(8)(b). Specifically, that they are subject to a Director’s hearing under Section 76 of the Act.

3The Board concluded on this preliminary point that some of the matters of complaint to the Board are subject to another decision-making process under the Act, but that other portions of the complaint are properly before the Board, and gave oral reasons.

4The Board then proceeded to hear those permitted portions of the complaint on the merits. These reasons provide the Board’s reasons for:

(i) its decision on jurisdiction, and

(ii) its finding and reasons on the merits.

BACKGROUND

5The Applicant is the father of S.L., aged 10 and J.L., aged 7. The Applicant and the children’s mother, J.H., divorced in January 2005. The Court order allowed the Applicant access to his children.

6On November [...], 2006 the Applicant was arrested and charged with sexual assault/interference with respect to his daughter S.L. The charges were based on a statement made by S.L. that has never been recanted. As a result, the Society placed the Applicant’s name on the Child Abuse Register (the “Register”). One of the bail conditions was that the Applicant could not contact his children.

7On May [...], 2007 all charges against the Applicant were withdrawn. The Society continued the total restrictions on the Applicant’s ability to see his children. The Society sent letters to the children’s mother and step-father, as well as the children’s school, directing that the Applicant should not contact them or the children directly and that, should he attempt to do so, they should call the police.

8The Applicant applied for a hearing before the Provincial Director, under s.76(3) of the Act, to have his name removed from the Register. A hearing was scheduled for October [...], 2007. The result was not known, as of the date of this hearing.

9The Applicant repeated on many occasions to the police, the Society and the panel, that he is innocent of all allegations. The Society’s internal “risk assessment” scores the Applicant as a “high risk”. It continues to score him as a “high risk” because he has never admitted to any wrongdoing or accepted responsibility for it. In order to manage this risk, the Society proposed a series of safeguards which it referred to at the hearing as a “re-integration plan”, laid out in a letter dated June [...], 2007 (Exhibit 4). The Applicant initially objected to some of the Society’s requirements laid out in the plan, but the Society threatened to obtain a protection order from the Court if he did not comply.

10The Applicant has now, against his better judgment, complied with all the Society’s requirements, including obtaining psychiatric testing regarding the risk he poses to his daughters. The reports confirm that the Applicant poses low, to no risk.

11The Applicant wrote a complaint letter to the Society on September [...], 2007 (“the complaint letter”). On the same day, he filed an application under s.68.1 with the Board, attaching the complaint letter, with the following complaints:

1. wrongly recorded information about him in the case file;
2. for over 22 months, he was never interviewed;
3. presumed guilty in the CAS Worker’s eyes;
4. told by CAS that he was guilty, even after charges withdrawn;
5. CAS imposed restrictions on his access to his children, prohibiting all contact, in spite of a valid Court order;
6. told he must take phallometric testing – problems determining what this means and despite professional advice that he should not submit to it;
7. CAS dismissed the support letter by Dr. T. which the Applicant sent to them;
8. (a) risk assessment contains inaccurate information from a biased source; (b) the Applicant was not interviewed to provide balanced information;
9. CAS created a written document full of innuendos and false statements without talking to him;
10. no opportunity to be heard regarding decisions affecting his children’s best interests and the services they are receiving.

12At the hearing, the Board added the following issue to this list:

11. whether the Applicant received an internal review from the Society as a result of this Sept. [...], 2007 complaint letter.

13Shortly before November [...], 2007 the Society agreed to allow the Applicant supervised visits with his daughters. The children’s mother, however, despite initially agreeing to the visits as per his Court ordered access, has since refused to permit them.

14The pre-hearing conference in this matter was postponed on two occasions to await a decision in the Director’s hearing. It was hoped that the s.76 proceeding may resolve some of the complaints before the Board. By December [...], 2007, however, it had become apparent that the pre-hearing phase had run its course, and the Applicant still had issues that had not been settled. The Pre-Hearing Endorsement Sheet dated December 21, 2007 noted that it was not possible to list the issues that would be heard by the Board until a decision was made regarding which portions of the Applicant’s complaints might be covered by “another decision making process”, specifically the Director’s hearing under s.76 of the Act.

ANALYSIS

PART 1: Whether the subject matter of this complaint is subject to another decision-making process under the Child and Family Services Act (the “Act”).

15The Society argued that all of the issues outlined above are matters that are subject to the Director’s hearing under s.76 of the Act, and therefore are not matters that the Board by virtue of Section 68.1(8)(b) of the Act can hear.

16Section 68.1(8)(b) of the Act reads as follows:

The Board shall not conduct a review of a complaint under this section if the subject of the complaint is subject to another decision-making process under this Act or the Labour Relations Act, 1995.

17Section 76 provides:

(8) Where the Director determines, after holding a hearing, that the information in the register with respect to a registered person is in error or should not be in the register, the Director shall remove the registered person’s name from or otherwise amend the register, and may order that the society’s records be amended to reflect the Director’s decision.

18The Society used the following key points to support its argument:

• the rationale for the prohibition from engaging in parallel hearings is to avoid duplication and expenditure of resources in resolving issues;
• the substance of this complaint is the same as that considered in the s.76 hearing;
• the s.76 Director’s hearing between these same parties was extensive; it lasted one full day with additional subsequent teleconferencing. We cannot anticipate what the s.76 Director’s decision will be.
• Whether the Society failed to consider the Applicant’s position would be taken into account by the hearing officer at the s.76 hearing, in determining whether his name should remain on the Register.
• The hearing officer at the s.76 hearing has more power than this Board with respect to correcting inaccurate information. The Director can correct the Register, and the phrase “and may order that the society’s records be amended” indicates the hearing officer can order that the Society’s risk assessment be amended.
• The Applicant’s ex-wife needs to be involved in the process where custody and access are involved.

19The Applicant argued the following:

• his s.76 application was to get his name removed from the Register, not to amend records within the Society;
• his understanding is not that all his complaints would be addressed at that hearing;
• his complaint before this Board relates to getting his “good name cleared”;
• he wants an internal complaint review process (“ICRP”) with respect to incorrect information;
• he never received clear and concise answers relating to his daughter’s surgery in 2007. He is offended this information was not shared with him. He wouldn’t have known about the surgery if he hadn’t filed a complaint with this Board.
• There is no reason to believe that if his name is removed from the Register, he will then get an interview with the Society regarding his “risk assessment”.
• The Applicant feels he did not get “ample” time at the s.76 hearing to bring forward his concerns regarding inaccurate information because the hearing ended and he was cut off.

20The Society made the following points in reply:

• The Applicant’s children were never in care of the Society, so it has no power over sharing health information etc. To this, the Applicant replied that since the Society has informed all other parties not to reply to him nor contact him, he has no other way to obtain the information.
• The Society’s risk assessment tool precludes it from allowing contact, unless the Society feels it can deviate from the assessment, and can establish that it should be modified. This is why the risk management plan was designed.

21It is clear that the Board has no jurisdiction to hear evidence regarding whether the Applicant is properly listed on the Register. This is the subject matter of the s.76 Director’s review. Section 76(2)(c) provides that a person may request that the Director remove the person’s name from, or otherwise amend, the Register. Subsection 76(8) provides that the Director may order the Society’s records to be amended to reflect the decision regarding the Register (emphasis added). Consequently, the Society’s “records” which may be amended as a result of the Director’s decision relate only to whether his name has been removed from the Register.

22The Applicant’s complaints to this Board are not focused on the information in the Register. They relate to other incorrect information in the Society’s files; the process by which the Society collected its information (i.e. failure to interview him or otherwise gather information related to his “side” of the story); and the restrictions placed on him as a result of their information collection.

23The Board disagrees with the Society’s interpretation of the phrase “the Director … may order that the society’s records be amended to reflect the Director’s decision”. Section 76(8) provides that the Director’s decision is whether “the information in the register with respect to a registered person is in error or should not be in the register”. The Board finds that the Director’s review under this section does not include a review of other information in the Society’s files, or to correct errors in a Society’s file, other than those referring directly to the Register. We find that the subject matter of the Applicant’s complaint is not “subject to another decision-making process under this Act”.

24The complaints relating to wrongly recorded information in the case file are issues 1, 8(a) and 11.

25In a letter dated September [...], 2007, the Society refused to hear this portion of the Applicant’s complaint internally. It took the position that the subject matter was being heard under a separate proceeding (the Director’s review of the Register), and pursuant to s.68(12) it had no jurisdiction to hear the complaint.

26As noted above, the Board finds that it does not lose jurisdiction over this complaint due to the s.76 Director’s review. The sections regarding the Board’s jurisdiction to hear an application (s.68.1(8)) and the Society’s jurisdiction to hear an internal complaint (s.68(12)) are identical. The Board therefore finds the Society improperly refused to hear the Applicant’s complaint about incorrect information in the file.

27Sections 68 and 68.1 of the Act do not permit the Board to review a complaint of inaccuracies in the Society’s files directly; such complaints must go through the internal review process first. We therefore order the Society to proceed with the Applicant’s September [...], 2007 complaint in accordance with the complaint review procedure established by regulation pursuant to Section 68.1(7) of the Act. It was agreed at the hearing that the statutory timelines for the Society to undertake this review should begin to run on the date this written decision is issued.

28Should the Applicant not be satisfied with that review, he may then apply to the Board for a review.

29Issues 2, 3, 4, 8(b) and 9 all deal with the Applicant’s allegations that the Society failed to interview him. These complaints all invoke the Applicant’s rights under s.2(2)(a), which reads:

s.2(2)(a) Service providers shall ensure that children and their parents have an opportunity where appropriate 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.

30Issue no. 10 is a general statement of the Applicant’s s.2(2)(a) rights, although he has not specified which specific decisions he is complaining about. The Board finds that issue no. 10 refers to the concerns raised in issues 2, 3, 4, 8(b) and 9, and is included within them.

31Issues 5, 6 and 7 all relate to the restrictions imposed on the Applicant’s access to his children by the Society. Those restrictions are outlined in a letter from the Society dated June [...], 2007. At the hearing, H.R. described the letter as a “reintegration plan”. The Board has jurisdiction over these issues as they are not within the subject matter of the Director’s hearing.

32The Board finds it has jurisdiction to hear these complaints, on the understanding that the Applicant is seeking reasons for the Society’s decision.

PART 2: Complaint on the Merits

33Following the Board’s oral decision on jurisdiction at the hearing, the Parties then proceeded to argue the complaints on the merits.

No Interview for 22 Months

34The Applicant testified that he was first informed by the Society that an “investigation” was underway “involving his children”, on approximately November [...], 2005. The Society worker at the time, A.H., told him she would do a follow-up interview with him on November [...], 2005. However, he was arrested and detained on November [...], 2005, and was never interviewed by the Society.

35The Applicant acknowledged that he has had numerous discussions with the current Society Child Protection Worker, L.W., and has been able to assert his innocence repeatedly. However, he does not consider any of these discussions to have been an “interview” in which he was asked questions relating to the risk, or lack thereof, he might pose to his children.

36The Society called L.W. as a witness. She testified that she has had hundreds of discussions with the Applicant, although she acknowledged the Society never “officially” interviewed him. She testified that the “risk assessment” is an internal evaluation done by the Society, updated every six months, using information in the file. The first one was done December [...], 2005 by the previous worker, and L.W. has periodically reviewed it. For each updated assessment, interviews are not conducted.

37The Board finds that the difference between “contact” and an “interview” is more than mere semantics. An interview is conducted as part of a fact-finding initiative by the Society, in which it specifically asks relevant questions to obtain information in a balanced way. Client-initiated phone calls and discussions may not result in the Society obtaining all the information it needs. In addition, information provided by angry or frustrated callers may not result in as balanced a view as information elicited from an organized interview. We find the Applicant has not been interviewed by the Society about the subject matter of his complaint. We find that this is a breach of his rights under Section 2(2)(a) of the Act.

Presumed Guilty

38The Applicant complains about a lack of professionalism by the Society workers in their treatment of him. He believes the former worker allowed personal feelings and biases to influence her information gathering, and the file is therefore one-sided against him. He feels disadvantaged because he must “prove his innocence” to the Society, rather than benefiting from the presumption of innocence.

39L.W. testified on behalf of the Society that the Society is obliged by s.75(3) of the Act to place a name on the Child Abuse Register when it has any credible evidence. The Society had credible allegations regarding the Applicant, from S.L. The Society is to verify that abuse occurred, prior to placing a person’s name on the Register. In this case, there has been no corroboration, but there has been no recanting of the allegations either. The Society feels the disclosure is credible and proceeded on this basis alone. The standard of proof required for the Society to consider a person to be a risk to a child is lower than the criminal standard.

40The Board recognizes the Society has policy obligations with respect to reporting any credible information regarding risk to children. Nonetheless, the Board finds that the Applicant’s complaint around a “presumption of guilt” is tied to his feeling that he has not been interviewed for his side of the story. Were he to be formally interviewed in order to provide complete information for the Society’s risk assessment, it may go some way to resolving this complaint.

CAS Requirements to Re-Establish Access

41The Applicant complains that after the charges were withdrawn on May [...], 2007, the Society did not contact him about re-establishing contact with the children, he had to contact them.

42He had to find his own person to do “Clarke assessment with phallometric testing”. He was not given any information as to what that meant. He testified as to his understanding, that “phallometric” testing is given to sex offenders to work on deviant behaviour. He believes that it is not to test sexual risk to children. The Applicant therefore refused. He was told that he would have no contact with his children until this testing was done, and was told that if he attempted to contact his children, the Society would seek a protection order. The Applicant argues that this is not consent, it is coercion. The Applicant did acknowledge that L.W. helped him find a person for the second assessment, which was deemed sufficient by the Society.

43The Applicant argues that the Society wrote to his ex-wife and the children’s school that they should call the Society and the police if he made any attempt at access. He was prevented even from getting basic information from the school, such as “when are report cards coming out?” He stated that he has received no information that the Society has updated this direction.

44The Applicant noted that he sees no “re-integration” in the Society’s “plan”. The Society refused even to pass on information to his children that their father misses and loves them. He also asks why the Society asked him to go through the testing, when it began to arrange for supervised visits, even before it received the report from Dr. G.

45For its part, the Society noted there were 22 months of Court ordered no-contact between the Applicant and his children. S.L.’s allegation has never been recanted. Once the charges were dropped, the Society stepped in as a “conduit” to re-establish contact between the Applicant and his children in a sensitive and careful way; it considers it is doing this with the Applicant’s consent because the alternative is to get a Court order regarding protection. The Applicant has not gone to Court for an order, and is co-operating such that the Society has not been forced to do so. On this point, the Applicant responded that it is too expensive for him to file an application with the Court, to enforce his access rights against the Society.

46L.W.’s recollection of the June [...] meeting was that the Clarke Assessment was suggested as an option to the Applicant because it was the only test they were aware of. The Society stated that it was also open to the Applicant to find a suitable test. Part of the Clarke Assessment involves phallometric testing, although the Applicant did not have to undergo this testing in the end. L.W. admitted that her understanding of the assessment is limited, which is why the Society asked for an expert opinion.

47Counsel for the Society argues there should be no adverse inference drawn against the Society due to its “failure” to contact the Applicant following the charges being withdrawn. The Society was not a party in Court on May [...], 2007.

48The Board finds the Society has given the Applicant reasons for its decisions in this regard. While he is clearly dissatisfied with the approach the Society has taken, its objectives have been explained through numerous contacts between the Applicant and the Society. The Board makes no order in this regard.

Society’s Risk Assessment

49The Applicant questions the quality of the risk assessment conducted by the Society. He believes the Society has a responsibility to do an unbiased review, as the results create an enormous stigma for the individuals involved. He argues that the Society could not make an accurate assessment when it did not interview him, his father, sister, brother-in-law or friends. He testified that he would have given the Society a list of names of people to contact and ask about him, in order to assess the risk he poses to his children.

50L.W. testified on behalf of the Society that Child Protection Workers are qualified to do risk assessments for the Society. In response to a question by the Applicant, she testified that the Society’s mandate is to interview all caregivers including the alleged perpetrator and children. L.W. testified that she believed the discussions she had with the Applicant over the phone gave her a good picture of his position on the matter.

51She admitted that there are a number of questions on the assessment which are marked “need further information”. They include use of drugs and alcohol, the Applicant’s family history and relationship with his ex-wife, and discipline of the children, which have never been completed for the Applicant. L.W. noted, however, that the underlying reason for which the Society finds him to be a “high risk” to his children remains the same: he has never admitted the actions, and thus has taken no responsibility for them or any action to address it. This is an “override” condition on the risk assessment, and the Applicant would continue to be considered “high risk” even if all the risk assessment questions were completed.

52Counsel for the Society argues that the Applicant had the right to be heard and was given reasons for all decisions of the Society, as required by s.2(2)(a). H.R. argues that the semantics around the word “interview” do not change the fact that the Applicant has had considerable opportunity to call and express his concerns to the Society, and partakes in a constant dialogue. H.R. asked the Board to consider the clear and articulate manner in which the Applicant was able to present his case to the Board, in deciding whether he has been able to express his concerns to the Society.

53The Board finds that the Society has not collected information regarding the Applicant’s point of view in making its “risk assessment”. As noted above, the Applicant has not been interviewed by the Society, and it is not clear that the series of impromptu contacts between the Applicant and the Case Worker would yield all the required information to make a complete risk assessment. The proof can be found in the fact that there continue to be a number of entries indicating “insufficient information”, despite the “close to 100” conversations between the Applicant and L.W.

54It appears that a number of the Applicant’s questions were answered during the hearing itself. Given the remedies available to it under Section 68.1(7) of the Act, the Board orders the Society to (a) provide the Applicant with the opportunity to answer the risk assessment questions (i.e. an interview) as per Section 68.1(7)(c) of the Act; (b) provide the Applicant with written reasons for its decision not to interview him in preparing its updated “risk assessment” and for its decision to continue any restrictions on his communication with the children’s school.

CONCLUSION

(i) The Board denies the Society’s motion regarding jurisdiction and determines that the subject matter of this complaint is not subject to another decision-making process under the Act.

(ii) The Board orders the Society to conduct an internal complaint review procedure regarding the Applicant’s complaints that the Society has incorrect information in its files, according to the timelines provided by regulation. The timelines will start as of the date this decision is sent to the Parties. The Board requests that the Society notify it when its review of inaccuracies in the file has been completed.

(iii) The Board finds the Society did not provide the Applicant with the opportunity to express his concerns during the risk assessment review process. The Board orders the Society to (a) provide the Applicant with the opportunity to answer the risk assessment questions (i.e. an interview) as per Section 68.1(7)(c) of the Act; and (b) provide the Applicant with written reasons for its decision not to interview him in preparing its updated “risk assessment” and for its decision to continue any restrictions on his communication with the children’s school, within 30 days of the receipt of this decision. A copy of the reasons shall be forwarded to the Board.

Heather Gibbs Presiding Member

Denyse Diaz Panel Member

Mary Wong Panel Member