A.C. v. The Children’s Aid Society of Ottawa, 2008 CFSRB 13

CHILD AND FAMILY SERVICES REVIEW BOARD

A.C.

v.

The Children’s Aid Society of Ottawa

REASONS FOR DECISION ON MERITS

Date: February 29, 2008

Citation: 2008 CFSRB 13

Indexed as: A.C. v. The CAS of Ottawa (CFSA s.68)

Related Decisions: Reasons for Decision on Jurisdiction – A.C. v. The CAS of Ottawa, (CFSA s.68), 2007 CFSRB 67

1The Applicant filed an application pursuant to section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”) with the Child and Family Services Review Board (the “Board”) on May 23, 2007 against the Children’s Aid Society of Ottawa (the “Society” or “CAS”) wherein he alleges:

1. the Society failed to comply with subsection 2(2)(a) of the Act;

2. the Society interfered in family, health and legal areas that are outside of its mandate;

3. the Society misled the Applicant and lied to him that his children were not at risk when the case notes indicated that the children were at risk several times since January 2004, with increasing frequency;

4. the Society refused to prosecute the mother for violating the Act;

5. the Society refused to prosecute Dr. D.D. for his violation of not reporting the mother’s abuse and neglect, as he was required to under the Act.

2In an earlier decision on November 21, 2007, the Board ruled that it had jurisdiction to hear the Applicant’s complaint that he was not listened to by the Society pursuant to subsection 2(2)(a) of the Act and that he was not given reasons for decisions that affected his interests. The Board limited its jurisdiction to allegations that the Society interfered in family, health and legal areas outside of its mandate and that the Society misled the Applicant and lied to him that his children were not at risk. This is the Board’s decision on those complaints.

PRELIMINARY MATTERS

3The Applicant brought a motion asking the Board to accept audio recordings of telephone calls between the Applicant and the Society workers. The Applicant submitted a revised document titled “transcription of recordings made by the Applicant (rev-2)” and asked that it be included in Tab 48 of the Applicant’s written evidence package (Exhibit A-1).

4The Society’s position on the motion was the Society workers were not aware that they were being recorded by the Applicant.

5The Board ruled the document “transcription of recording made by the Applicant (rev-2)” submitted as a revision in Tab 48, would not be accepted.

6The Board further ruled not to accept any audio recording of telephone calls transcribed by the Applicant. It ruled the transcripts of the calls done by the Applicant had time lapses, the text appeared selective in nature and were not professionally scribed.

7The Board agreed that the Applicant could use the dates of the recordings in the document in order to make reference to calls he may have had with the Society worker on a given day.

8It was ruled that Mr. C., the Applicant’s support person, could address the Board. Mr. C. did attend the pre-hearing conference. The Society agreed that Mr. C. could remain in the hearing pursuant to Rule 66 of the Board’s Rules of Procedure which states: In addition to the Applicant and the Society, the Board may determine that the following persons may attend the hearing: (a) where appropriate, a representative of the applicant’s band or native community or (b) one other person of the applicant’s choosing.

9It was ruled by the Board and agreed by both parties that Mr. C. could address the Board while in the hearing, but would not provide testimony or be called upon as a witness in the proceedings.

BACKGROUND

10The Applicant separated from his former wife on August […], 2003 and resided in the same home until January […], 2004. Shortly after, he and his son, J.C., DOB June […], 1991, moved out of the home and the Court ordered sole custody to the father. His former wife received sole custody of his daughter, T.C., DOB August […], 1993. The Applicant (the “father”) and Ms. M. (the “mother”) divorced in February […], 2006.

11The mother currently has interim custody of both J.C. and sole custody of T.C. The children currently reside with their mother. J.C. went to reside with his mother on September […], 2006 after he fled from his father’s home.

12J.C. was diagnosed with Attention Deficit Disorder (“ADD”) at age 5 and later with Oppositional Defiant Disorder (“ODD”) and mixed depression. Later, he was further diagnosed with Attention Deficit and Hyperactivity Disorder (“ADHD”), Conduct Disorder (“CD”) and depression.

RELEVANT LEGISLATION

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.

2(2) Service providers shall ensure,

(a) 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.

28 Counselling service: Child twelve or older

A service provider may provide a counselling service to a child who is twelve years of age or older with the child’s consent, and no other person’s consent is required, but if the child is less than sixteen years of age the service provider shall discuss with the child at the earliest appropriate opportunity the desirability of involving the child’s parent.

ISSUE

13The Board must decide if the Society ensured that the Applicant’s concerns about the services received from the Society were heard and that the Society provided the Applicant an opportunity to be represented when decisions affecting his children and his interests were made.

DISCUSSION AND ANALYSIS

14The Applicant claims that the Society failed to listen to him regarding the following complaints:

Differential Treatment of the Applicant and His Ex-Wife

15The Applicant testified and provided written submissions that he made complaints to the Society that his ex-wife was emotionally abusing his son, J.C. and that the Society took no action.

16He further alleged the Society was treating him differently than his ex-wife. He reported that on one occasion, the Society responded immediately to the mother’s calls because she is a woman and that’s the way the Society works.

17The Applicant had called CAS on March […], 2004 for assistance. In an interview on April […], 2004, it was reported that J.C. had been suspended from school. In another incident while in the car with the Applicant, J.C. tried to jump out of the car and attempted to grab the keys from the ignition in the middle of an intersection and hit his father. The Applicant did not feel he could cope. J.C. had been physical with him and tore up some papers. J.C. did lock himself in the bathroom and eventually calmed. The father wanted his son to remain at home, but viewed the situation as desperate.

Society’s Response

18The Society did respond by sending an after hours worker to the home on April […], 2004. Although there was no verification about the Applicant’s caregiver capacity, the situation had calmed down when the after hours worker visited later that evening. The CAS had decided the main issue for this family was the ongoing custody/access dispute that was before the Courts. A Family Court assessment was being conducted and no other protection concerns were noted.

19The Applicant was informed in a telephone interview with CAS Worker M.D. that his issues related to access with his daughter would need to be dealt with through the Court system.

20A follow up appointment was scheduled with the Applicant and his son on April […], 2004.

21The Society report relating to the referral of April […], 2004 revealed an investigation was conducted by the Society and, following the investigation, the file was closed on May […], 2004. The report noted the areas of concern were parent/child conflict and the caregiver’s mental health. The decision from the Society showed the main issue for this family at the time was the ongoing custody/access dispute before the Courts; however, a Family Court Clinic assessment was being completed, therefore, the matter was not at a child protection concern at this time. No other protection concerns were noted.

Failure to Protect J.C.

22On February […], 2006, the Society received a same day referral where the allegations were verified that J.C. did receive a bruise from the father, however, it was because his father was defending himself from physical attacks from J.C., age 14 at the time. The Applicant did not feel the CAS did enough to protect J.C. when it was reported J.C. was refusing to take his medications and J.C.’s mother was not taking his son to medical appointments.

Society’s Response

23J.C. was neither in care nor under a supervision order at the time, but the Society had felt the family would benefit from on-going services.

Failure to Separate J.C. from his Sister

24On January […], 2007, the Applicant communicated to K.W., Society Child Protection Worker, and her Supervisor, S.P., that his son, J.C. (then 15) had hit his sister, T.C. (then 13 yrs of age). The Applicant had requested J.C. be placed in a facility after his release from a youth crisis residential unit. The Applicant reported the Society refused to acknowledge J.C. was hitting his sister or remove him from the mother’s home where T.C. also resided.

Society’s Response

25A case note dated January […], 2007 from H.A., with the Society, indicates the Mobile Crisis Unit received a phone call from J.C.’s mother that J.C. had hit his sister. The mother reported to the worker that her daughter was fine. The Society worker instructed the mother to contact the Mobile Crisis Unit if any further problems occurred. The Society worker made a home visit January […], 2007 and interviewed T.C. J.C. was not removed from the mother’s home.

Failure to Provide Medical Care

26The Applicant complained the Society refused to proceed with his complaint that J.C.’s mother neglected to provide appropriate medical care by convincing J.C. to stop taking his medications.

27He also stated the Society refused to proceed with his complaint that Dr. D.D. should be removed from caring for his son.

Society’s Response

28The Society accepted that J.C. could, under section 28 of the Act, provide his consent to continue counselling with Dr. D.D. and instruct Dr. D.D. on how to include his father in his treatment.

29The Society supported the position outlined in a February […], 2007 report from Dr. D.D. that J.C. was at an age and stage of understanding which made it appropriate for Dr. D.D. to continue his treatment. The Applicant had J.C. referred to him in April 2005 for a second opinion based on a referral from Dr. E. Dr. D.D. began on-going treatment of J.C. in May 2006. In December 2006, J.C. had indicated he would not attend a consultation with Dr. P., as arranged by the Applicant.

30Dr. D.D. stated in his report that J.C. had discontinued his medications for a period of time in August 2006, without the knowledge of either Dr. D.D. or his mother. Medication was restarted and the mother reported she was in full support.

31K.W., Case Worker, Ottawa Children’s Aid Society continued to remain involved in a supervisory capacity regarding J.C. and his younger sister at the mother’s home.

32The Society accepted Dr. D.D.’s opinion that there was no need at the time to consider a placement in a group home or place of safety under the Act for secure treatment. The Society supported Dr. D.D.’s diagnosis of J.C., according to the DSM IV Axis I of Attention Deficit and Hyperactivity/Conduct Disorder with co-morbid Depression; Query Childhood Trauma due to Marital Acrimony.

Other Society Responses

33In February 2004, the Society did an investigation based on a report from the mother about her concerns with the father being with J.C. During the investigation there was no verification that J.C. was likely to be harmed.

34On March […], 2004, the Society obtained information from the Family Court Clinic. Dr. D.M., from the Family Court Clinic, in Ottawa forwarded his full findings to the parents’ lawyers in his report dated May […], 2004. There was no evidence a copy of the full Family Court Clinic report went to the Society.

35In February […], 2006, the Society was contacted by the police at J.C.’s school regarding J.C. not wanting to return to the father’s home, but wanted to go to his mother’s residence. The Society advised police there was a custody issue, but no safety concerns in regard to either parent.

36In January […], 2007, J.C. became aggressive in the mother’s home. He was throwing objects at his mother and sister. The Society supported the mother’s response of contacting the youth crisis residential unit mobile crisis service and having J.C. admitted to the crisis unit. Following J.C.’s discharge from the crisis unit, the Applicant was not prepared to have J.C. return to his home. No Place of Safety or Kin Assessment was required by the Society with the mother’s agreement to have J.C. return to her home.

37On January […], 2007, K.W. received an emergency after hours alert memo that J.C. was being discharged from the crisis unit. The Society’s safety plan was to apprehend J.C. if no crisis beds were available and police assistance, if required, would be arranged if the mother called. The mother did not make a call to the Society.

38In a letter of March […], 2007, S.P., Child Protection Supervisor, invited the Applicant to use the Society’s formal complaint review process if he was not satisfied with the Society’s responses to his concerns. The Applicant was requesting the Society to forward clinical records from Dr. D.D. regarding J.C.’s treatment. The Applicant was concerned about a reference to his being a “hostile parent”, and the Society not recognizing the custody order for J.C.

39In another letter of March […], 2007, from S.P., it was agreed the reference to his being a “hostile parent” was unfortunate and his objection would be duly noted and a copy of his March […], 2007 letter would be on file.

CONCLUSION

40The panel finds that the Society acted both within its mandate and in a timely fashion in investigating protection concerns.

41The Society gave the Applicant the opportunity to be heard and voice his concerns with respect to the services then provided. Although the Applicant believes he was not heard by the Society, the panel finds that in fact he was given ample opportunity to be heard.

DECISION

42The Board acknowledges the emotional difficulty for the Applicant given his current situation related to the custody and access issues with his children and the challenges when parents have philosophically opposing approaches to child management.

43However, based on the evidence, the Board dismisses the complaint(s) under section 2(2)(a) of the Act and finds the Applicant did have an opportunity where appropriate to be heard and represented when decisions affecting his interests were made and to be heard when he had concerns about the services he was receiving.

Walter Rogers Presiding Member

Deborah Simon Panel Member

Frances Sanderson Panel Member