P.D. v. Children's Aid Society of Ottawa, 2008 CFSRB 80

CHILD AND FAMILY SERVICES REVIEW BOARD

P.D.

v.

Children’s Aid Society of Ottawa

REASONS FOR DECISION ON MERITS

Date: August 20, 2008

Citation: 2008 CFSRB 80

Indexed as: P.D. v. CAS of Ottawa (CFSA s.68)

INTRODUCTION

1P.D1. (the “Applicant”) filed a complaint pursuant to section 68.1(4)4 and 5 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “CFSA”) with the Board on April 11, 2008. The Applicant complains that the Children’s Aid Society of Ottawa (the “Society”) failed to provide him with reasons for not approving access to his children and for not permitting his mother to have access to his children between November […], 2007 and April […], 2008.

2The Applicant further complains that he was not heard regarding his requests for access or regarding his concerns about the children’s mother during the Society’s investigation, contrary to section 2(2)(a) of the CFSA.

3The Board must decide, based on the evidence, whether or not the Society provided the Applicant with reasons for decisions that affected his interests and whether the Society heard the Applicant about his concerns.

BACKGROUND

4The Applicant has two children, P.D2., born May […], 2002 and I.D., born May […], 2004. P.D2. has been diagnosed with autism. The mother of the children is J.D. (the “mother”). On November […], 2007, the Applicant was charged with offences relating to alleged domestic violence against the mother and his daughter. He was released on an Undertaking that prohibited him from communicating with the mother and the children or attending at their residence. This prohibition was subject to an exception which reads:

...except in accordance with the following conditions:

...communication and visitation with the children to be approved by Children’s Aid Society...

5Mr. P.D1., in his April […], 2008 application, alleges that he was denied access to his children up to that time and that he was not provided with reasons for this decision or a meaningful opportunity to be heard. The Applicant testified on his own behalf, as did his mother, M.D..

6The Children’s Aid worker, C.G. (the “worker”), gave evidence regarding the Society’s involvement with the Applicant. It is the Society’s position that:

1. It was up to the Applicant to contact them;

2. That they had no legal authority to approve access;

3. That no decision was made, or in the alternative, that if a decision was made, the Applicant was provided with reasons;

4. That the Applicant was heard.

ANALYSIS

7For the reasons that follow, the Board is satisfied that up until March […], 2008, the Society failed to provide the Applicant with reasons for not approving access to his children. In addition, up to the time of the application, the Society did not provide the Applicant with reasons for its delay as requested. The Board is satisfied that the Society did not provide reasons to the Applicant for denying his request that his mother have access. Further, the Board is satisfied that the Society failed to give the Applicant an opportunity to be heard regarding his requests and concerns.

8Mr. P.D1. testified that based on the Undertaking, he was under the impression that the Society was to arrange access with his children. Ms. C.G. gave evidence that the Society’s interpretation of the Undertaking is that any plan for access arranged between Mr. P.D1. and the children’s mother would first have to be approved by the Society.

9Mr. P.D1. stated that when he signed the Undertaking he was told that the Society would contact him but it never did. When he did not hear from the Society, he initiated contact. The evidence indicates that he contacted an employee of the Society on December […], 2007. This employee was not called as a witness regarding what information, if any, she passed on to the Applicant. The Applicant testified that he was given an extension, which he called, but that he had to call again as he received no response to his first call. In the week of December […], 2007, Ms. C.G. contacted him while he was in Montreal.

10The Society received a referral from the Police on November […], 2007, the date of the Applicant’s arrest and of the Undertaking referred to above. According to the worker, in domestic violence matters, they must commence their investigation by seeing the children within 7 days.

11The worker met with the mother and the children on November […], 2007. Ms. C.G.’s Summary dated July […], 2008 indicates that she advised the mother during that visit that she felt the children were not ready for access with their father and that she would need to meet with the Applicant prior to any access being arranged. She further advised the mother that any access would need to be supervised.

12After meeting with the children and their mother, Ms. C.G.’s evidence is that in order to consider supervised access she would need to see some remorse on the part of Mr. P.D1., meaning that he would do whatever it takes to see his children e.g. go to parenting or anger management and courses, as well as an assessment of “where the children were at” and for the mother to be comfortable.

13There is no evidence of the Society attempting to contact the Applicant at or around that time. Mr. P.D1. advised that his first contact with the Society was not until the week of December […], 2007.

14The Applicant met with Ms. C.G. on December […], 2007. His mother, M.D., was also present, as was his sister-in-law and another Society representative. The Applicant testified that he requested access to his children at the meeting and that he was told “No, it is not a good idea at this time”. According to the Applicant, there was no other explanation given. He also requested alternatively, that his mother be given access and the answer was: “No. Not at this time”. This was a request by the Applicant, regarding his interests in having his children see someone closely linked to him.

15Mr. P.D1. testified that the focus of the meeting was on the criminal allegations, that he was greeted in a hostile manner and told he had to admit his guilt. The discussion was not about visiting his children. He felt he had to satisfy the Society’s criteria, but none were outlined. Ms. C.G. confirmed that she did not set out the criteria which Mr. P.D1. had to meet before he could have access to his children or provide him with any timeline by which access could occur. He advised the Board that he told the worker that he just wanted to make sure his children were okay and that he was amenable to phone and/or supervised access. He told the worker at the meeting that he didn’t care if he had to see the children behind glass as long as he could see them.

16The worker testified that she was conducting an investigation and as such, she had to address the children’s allegations at the meeting. She testified that there was a lot of emotion at the meeting and it was difficult to “get through everything” that she needed to discuss with Mr. P.D1.. She testified that she explained that there would be no supervised access or approval of access at that time given the state of the children and the fact that the mother was getting them into counseling. She also testified that she was not at liberty to tell him about professional involvement because she could not share information without the mother’s consent. This testimony is conflictual in that the worker states both that she advised the father about potential professional involvement but also that she could not advise him without the mother’s consent. This places some doubt on her testimony that she advised Mr. P.D1. about the mother seeking professional involvement. It is also of concern because there was no Court order prohibiting information sharing with the Applicant, the children’s father.

17Ms. C.G. testified that she was waiting for the mother to access resources and was concerned about the son’s anger towards his father and how the family might react to access. She saw her role as being to approve a plan for access, in the best interests of the child, in such a way as was agreeable to and with the consent of the primary caregiver (the mother). Ms. C.G. did not share this with Mr. P.D1..

18When the Applicant advised that he was not willing to take anger management or parenting courses but was in counseling through his EAP, Ms. C.G. did not go beyond this and left it at that. She did not obtain consent to follow up with his counselor to determine if this counseling was sufficient to address her concerns. There is no evidence that she advised him that in declining to take these courses, that from her perspective, he could not have access. She did not advise the Applicant of the role of the mother in terms of how her consent would impact on access. Nor was there a lot of discussion of “where the children were at” and how she would deal with that in terms of approving access.

19Regarding the Applicant’s request for his mother to have access to the children, the worker testified that she had no authority regarding access to the grandmother but wanted to play a facilitating role. She believed she advised the Applicant that it was something she could not facilitate at that time. Ms. C.G.’s evidence is that the Society does not usually facilitate access for other family members, however, this was not explained to the Applicant. She also did not go into what needed to be done for the grandmother to have access or to get Society supervision.

20At the meeting, the Applicant also advised the worker of his concern that the mother had thrown their son. Under cross-examination, the worker testified that she “may have” shared the allegation with the mother who explained it was a playful toss. The worker was vague surrounding the details and was not aware of whether the child cried. She advised that it was after “therapeutic exercises” but was not aware that it occurred at midnight.

21The worker testified that as part of an investigation she might observe the child with the parent to see how the child would behave with the father. In this case, she did not pursue this option in deference to the mother not supporting access and because she was waiting to get input from the professionals. There is no evidence that she discussed this with the Applicant. There is no evidence that the Society took into account the impact of delay in seeing the Applicant on the children, which was of concern to the Applicant.

22Following the December […], 2007 meeting, the Society did not contact the Applicant until March […], 2008. The Applicant faxed correspondence to the Society specifically requesting access and, if refused, “written formal documentation, outlining in detail, the precise reasons”. The Applicant also requested reasons for the delay with reference to the number of days that he felt the Society had been impeding access. The Applicant faxed letters on March […], 2008, March […], 2008, March […], 2008 and on March […], 2008. In the March […], 2008 letter, he advised that he had called the Society dozens of times since November, 2007 and has been faxing since March […], 2008. On March […], 2008, the Society responded to his counsel, as requested in the March […], 2008 letter. The Society’s response states, in part:

I apologize for the delay in my response. I am in the process of consulting with professionals that are currently involved with the children in order to assess clinical considerations regarding access between yourself and your children at this time. I will provide you with updating information with respect to the Society’s position regarding access as soon as I am able to connect with all of the collaterals involved.

23The Society did not follow up with the Applicant, prior to his filing his application with the Board. The Applicant sent further requests for access and reasons, including reasons for delay on March […], 2008 and April […], 2008. His counsel sent a request for a timeline on April […], 2008. The Society did not respond to any of these requests. At the hearing, Ms. C.G. acknowledged that between her initial meeting with Mr. P.D1. on December […], 2007 and his application to the Board on April 11, 2008, she should have been in contact with Mr. P.D1., providing updates on her investigation and apologized for not having done so.

24The Society provided a Case Summary, which includes some of the reasons for its actions, on July […], 2008 as part of the Board’s process. The Society takes the position that it provided Mr. P.D1. with reasons for its decisions in this Case Summary.

CONCLUSION

25The Board finds that the Society did not give Mr. P.D1. either an opportunity to be heard when decisions affecting his interests were made or reasons for those decisions.

26The Board has no jurisdiction with respect to substantive child custody and access issues, nor does the Board have the authority to examine the validity of any reasons, if provided.

27The Board does not accept the Society’s argument that it had no authority with respect to access for the Applicant. It was clearly mandated to have a role and assumed that role when it initiated an investigation into the allegation of domestic violence. It was clearly engaged in an active process that involved the assessment of access to the Applicant. Their position that they would approve access only with the consent of the mother goes to one of the reasons for their decisions. The Board is also satisfied that the Society’s refusal to permit the Applicant’s mother to have access to the Applicant’s children if he could not clearly affected the Applicant’s interests and as such, he was entitled to reasons for the Society’s refusal.

28Upon review, the Board finds that the Society failed to provide the Applicant with reasons for decisions that affected his interests. The Applicant has made out his complaint under section 68.1(4)5 of the CFSA. The Applicant was entitled to reasons at the time decisions were made. From November […], 2007 to early December, 2007, the Society made a decision to investigate the allegations and in effect, to allow no access. They did not communicate this decision or the reasons for it to the Applicant as they had no contact with him.

29At the December […], 2007 meeting, it is evident that a decision had been made not to allow access pending the involvement of professionals, the consent of the mother, further assessment of “where the children were at”, evidence of remorse and the taking of certain specific steps by the Applicant. The Applicant was not provided with meaningful reasons at the meeting of December […], 2007. The Board finds that any explanation offered was cursory and dismissive and did not amount to reasons that would permit the Applicant to know what steps, if any, he needed to pursue. The meeting was an emotional one focusing on allegations against the Applicant and, in hindsight, a follow up meeting could have provided a means of providing reasons.

30Up until March […], 2008, the Society failed to provide the Applicant with reasons for its ongoing decision not to approve access. At no relevant point did the Society provide reasons for its delay. The Board does not accept the Society’s argument that no decision was made. The decision to delay pursuing access pending other considerations was a decision not to approve access. The evidence is consistent from all witnesses that there was no approval of access prior to or after December […], 2007. The ongoing nature of the decision does not change the fact that it was a decision or decisions.

31The Board also finds that the Society failed to provide the Applicant with reasons for the refusal to permit his mother to see the children at the December […], 2007 meeting. The worker clearly had reasons in mind, which she articulated in her testimony. No reasons were provided to the Applicant at the meeting. Whether or not the Society ultimately provided reasons to a third party for a separate request in this regard, was not an issue for the Board who did not receive evidence or submissions on this point.

32The Board finds that the Society did provide reasons for its decision, as at March […], 2008 to continue to not approve access. However, the response does not provide reasons for the delay as specifically requested by the Applicant. The Society does not explain why the access approval process and in particular, the consultation process, had taken so long. The Board finds that complaint is made out.

33The Board finds that the Society failed to comply with clause 2(2)(a) of the CFSA and that the Applicant has made out his complaint pursuant to section 68.1(4)4 of the CFSA.

34The Applicant was not contacted by the Society for approximately the first month of its investigation into allegations against him. When the Applicant met with the Society, they did not pursue his request for access because they felt he was denying the allegations and he would not attend anger management courses. Yet he provided information that he was in counseling. The Board is satisfied that the worker did not obtain consent to speak to his counselor and did not follow up with that professional regarding access. She had one course of action in mind and would not consider an alternate approach. The worker did not follow up with the Applicant between December […], 2008 and the end of March, 2008. The Applicant made repeated requests for access, which were ignored. There was no follow up meeting set after the December […], 2008 meeting. This was an emotional meeting and difficult to get through. A follow up meeting with the Applicant might have provided him with the opportunity to be heard regarding access, without the focus being on the allegations. It was appropriate for the Society to hear the Applicant’s views, wishes and suggestions regarding the access decision which clearly affected his interests. The Applicant was not permitted to see his children and he had no answers and no input. The Applicant was also entitled to be heard about his concerns that he wasn’t getting any answers. He was ignored in this regard until he asked that the Society respond to his counsel. The Applicant was also ignored, through counsel, when he asked for a timeline regarding access.

35The Board is concerned with the Society’s position regarding information sharing. The Society felt it could not share information about the children with the father without the mother’s consent since the mother was the primary caregiver. Absent a Court order limiting information sharing, where a father is receiving a service from the Society in relation to his children, providing information to the father about the children is a part of the Society’s obligation to provide reasons to the father about decisions that affect his interest in his children.

36The Board also finds that the Society did not hear the Applicant regarding his allegation that the mother threw the son. It is evident that this allegation was not fully explored. In the circumstances, it was appropriate that the Applicant be heard in this regard as the Applicant’s interests in the safety of his children were engaged in the context of a child protection investigation.

37The Board has two remedial options available in the case of a complaint under section 68.1(4)5. The Board may order the Society to provide written reasons for a decision to the complainant or it may dismiss the complaint. The Board does not accept the Society’s arguments that reasons submitted following the filing of the application to the Board, approximately nine month’s after the Society’s decision-making commenced, constitute reasons. The relevant timeframe is up to the date of the application. For nearly six months during which decisions not to approve access were made, the Applicant was not provided with reasons. The Applicant was never provided with reasons for the delay.

38The Board has decided that it will order reasons for the decisions affecting the Applicant’s interests up to March 28, 2008. This will include the ongoing decisions up to March 28^th, 2008 regarding the non-approval of access to the Applicant’s children and the reasons at the December […], 2007 meeting for not facilitating access as between the grandmother and the Applicant’s children. The Board has also decided to order the Society to provide reasons, to the date of the application, for the overall delay.

DECISION

39The Board orders the Society to provide the Applicant with reasons for the decisions affecting the Applicant’s interests up to March 28, 2008, with respect to his complaint pursuant to section 68.1(4)5 of the CFSA. This will include the ongoing decisions up to March 28^th, 2008 regarding the non-approval of access by the Applicant to the Applicant’s children and the reasons at the December […], 2007 meeting for not facilitating access as between the grandmother and the Applicant’s children. The Board also orders the Society to provide the Applicant with reasons for its overall delay, as requested by the Applicant, up to the date of the application. These reasons are to be provided within fifteen days of the date of this decision.

40With respect to the section 68.1(4)4 complaint, the Board orders the Society to respond to the Applicant within twenty days of the date of this decision with respect to whether or not they will approve access at that time and if so, the parameters of the access. The Board appreciates that it cannot order the parties to meet prior to the response date. However, since the decision presented in twenty days will affect the Applicant’s interests, the Board encourages the Society to comply with section 2(2)(a) of the CFSA at this juncture.

Denyse Diaz Presiding Member

Nycole Roy Panel Member

Sheena Scott Panel Member