CHILD AND FAMILY SERVICES REVIEW BOARD
S.D
v.
Hastings Children’s Aid Society
REASONS FOR DECISION ON MERITS
Indexed as: S.D. v. Hastings CAS (CFSA s.68)
INTRODUCTION
1On March 30, 2009, the Child and Family Services Review Board (the “Board”) conducted a hearing of the application by S.D. (the “Applicant”) regarding complaints against Hastings Children’s Aid Society (the “Society”) pursuant to section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”).
2At a pre-hearing teleconference held on February 17, 2009, the complaints by the Applicant were summarized and confirmed as follows:
That the Society has refused to deal with a number of complaints as outlined in the statement attached to the application to the Board. The Applicant identifies at least eight instances in which he complained in person, via e-mail and orally to Society staff;
That the Society has failed to comply with clause 2(2)(a) of the Child and Family Services Act (the “Act”) in that it failed to give the Applicant the opportunity to be heard regarding his role in the plan the Society put forward for his children, and
That the Society failed to provide the Applicant with reasons for a decision that affects his interests, namely, the reasons for the child care plan that the Society put forward.
3For the reasons that follow, the Board has dismissed the first two complaints and has found that the third complaint has been made out.
BACKGROUND
4The Applicant is the father of an adult daughter, H1., 18 years old. The Applicant is also the father of a son, H2., 14 years old and a son, L., 12 years old. The complaints made in the application relate to his two sons. Sometime in 2005 the Applicant’s marriage began to deteriorate. The Applicant attributes this to a pattern of concerning behaviors on the part of his wife at that time. These behaviors included an alleged addiction to video games, drinking, alienation of the children from him and her handling of their daughter’s concerning behaviors. In discussions with friends, family members and professionals, the Applicant came to apply a number of diagnostic labels to her behaviors: addiction, narcissistic, Munchausen’s by proxy (MBP) and Parental Alienation Syndrome (PAS).
5On April […], 2008, the Applicant called 911 because his wife’s behavior became disturbing and she would not allow the Applicant access to his younger son whom she had locked in a room with her. The Society became involved with the Applicant and his family in May 2008 and made an application to the court on July […], 2008 seeking a supervision order. The Applicant moved out of the family home prior to the hearing. An order was made that the children reside with their mother subject to the supervision of the Society for a period of six months and granting reasonable access to the father at the discretion of the Society and consistent with the wishes of the children. There has been no change to this court order to date and these matters are before the court on April […], 2009. The Applicant and the Society are awaiting a parenting assessment report that is in the process of completion by Dr. G., who was appointed by the court in October, 2008 and who is an expert in the area of PAS.
PROCEDURAL CONSIDERATIONS
6In the summary reply, the Society took the position that the Board had no jurisdiction with respect to this Application on the basis that all matters are before the Court. The Society did not make a preliminary motion to the Board with respect to jurisdiction and was content that a hearing take place and jurisdiction be addressed at the conclusion of the hearing. The Applicant proceeded first and gave evidence on his own behalf and, as well, filed a number of exhibits with the Board. The Society elected not to call any witnesses and relied upon the evidence tendered by the Applicant and exhibits filed. The onus is on the Applicant to establish his complaints on a balance of probabilities. The Society took the position throughout that there is no Board jurisdiction in these matters or, in the alternative, no merit to any of the complaints made by the Applicant.
7Following the hearing, the Applicant made a further written submission and sent the Board a copy of the assessment report of Dr. G. dated February […], 2009. The panel did not take this additional material into consideration since the case had been closed on March 30, 2009 and the additional materials submitted were not necessary for determination of the issues raised by the Applicant in this proceeding.
ANALYSIS
8This is an application under section 68.1 (1) of the Act. The relevant subsections provide as follows:
CFSA
s. 68.1(4)
The following matters may be reviewed by the Board under this section:
Allegations that the society has refused to proceed with a complaint made by the complainant under section 68(1) as required under subsection 68(2).
Allegations that the society has failed to comply with clause 2(2)(a),
Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
Section 2 (2) (a) states:
s. 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 services they are receiving.
9The Board’s findings on the three complaints summarized in paragraph 2 above are as follows:
Issue #1 – Refusal to Deal with Complaints
10The Applicant testified that he had sent four e-mails to K.P., child protection worker, on the following dates: August […], 2008, September […], 2008, December […], 2008 and December […], 2008. In his view, these constituted a written complaint to the Society expressing his concerns that the Society’s actions in dealing with him and his family were harmful to the children. He was very concerned about the Society’s failure to take his complaints about his wife’s behavior seriously and in particular, his alienation from his children. He also complained that he was not being allowed reasonable access to his children as stipulated by the court order. He requested that Ms. K.P. explain in writing how the Society intended to comply with this aspect of the court order.
11Ms. K.P. responded in writing on October […], 2008 to provide the Applicant, as requested, with a copy of the Society’s complaint procedure. S.R., Ms. K.P.s’ supervisor, sent an e-mail to the Applicant on October […], 2008 explaining that he had not had access to the children since they did not wish to speak to him or meet with him at the time. Ms. S.R. also addressed the Applicant’s view that the Society was contributing to the abuse of his children. The Applicant testified that he responded to the S.R. e-mail on the same date and informed her that he would not be availing himself of the Society’s complaint review procedure until Dr. G. had completed the parenting assessment. The Applicant also sent an e-mail to Ms. K.P. on December […], 2008 alleging that the Society had ignored his concerns about the alienation of his children and by so doing, had encouraged, participated in and supported this serious form of child abuse. Ms. K.P. responded to this e-mail with the offer of a meeting with herself and her supervisor. No meeting occurred. The Applicant wrote again to Ms. K.P. on December […], 2008 via e-mail with allegations of contributing to the abuse of his sons through inaction. Ms. K.P. responded on the same day reiterating that the children were not willing to participate in visits with him and that she had advised Dr. G. of their wishes as well.
12The Society did not lead any evidence on this issue and relied on the evidence tendered by the Applicant.
13The Board heard from the Applicant that he had made a number of written complaints to the Society and that the Society responded in writing to him on each of these occasions. The Society also provided the Applicant with information regarding the Society’s complaint review procedure which he chose not to engage. Although the Society did not proceed in the manner that the Applicant may have wished, it did respond to his complaints in writing and made him aware of the formal procedures available within the Society to pursue his complaints further. The Applicant chose not to avail himself of these procedures. Therefore, the Board concludes that the Society did not refuse to proceed with the complaints described above and dismisses this complaint.
Issue #2 – Failure to be Heard
14The Applicant gave evidence that the Society had gone forward with the court application in July without sufficient grounds. He stated that the issues of concern at the time the Society became involved were related to marital conflict and the emotional impact on the children. Neither of these singly or taken together, in his view, met the criteria to interfere in custody or access of the children. The Applicant further testified that the actions of the Society were in direct contravention of the Society’s governing standards. Furthermore, the Applicant contends that the Society had an obligation to obtain expertise to determine the risks that his wife’s behavior posed to the children before interfering in custody and access matters. The Applicant alleged that the Society knew that he intended to leave the family home and that they gave him no choice in this matter. In his view, once he left the home, the Society should have withdrawn their application since the children were no longer exposed to marital conflict. The Applicant had left the family home before the date of the court hearing relating to the children. In the Society’s application to the court, they indicated that the parents were engaged in a hostile separation and recommended that the children remain in the care of their mother who had been their primary caregiver with reasonable access to their father.
15The Applicant submitted a case note dated July […], 2008 written by J.B., the caseworker at the time, in which she describes a teleconference with the Applicant and his counsel, along with K.P., Society Legal Counsel, and a supervisor. The case note documents concerns shared with the Applicant regarding the parents remaining in the same home with the children and the risk of further emotional damage to the children and a possible risk of the situation becoming physical. There is also a reference to the court application for supervision being construed as a means to move the domestic situation along and the Applicant’s wish to have a psychiatric assessment completed. The Applicant also testified that he believed that the Society was in support of this and would be seeking an order for an assessment. The Applicant expressed the view that the Society failed to take into account information he had provided to it regarding PAS as a form of emotional child abuse when it went forward with the application to the court and recommended its plan for the children.
16The Applicant expressed his concerns that the Duluth model, a domestic violence model, has been incorporated into the standards used by Children’s Aid Societies in Ontario. This model has been refuted. However, the Applicant believes that the principles and premises of this model are still incorporated in the standards used by the Society. The Applicant introduced the February […], 2009 affidavit of Dr. B. to support his view that PAS is a form of emotional child abuse and that allegations of PAS should be treated seriously.
17The Society did not lead any evidence on this issue and relied on the evidence tendered by the Applicant.
18The Board heard from the Applicant that he had engaged in at least one discussion with the Society with his counsel present where the Society put forward concerns and its intention to apply for a court order. The Applicant did not testify that he had then put forward a plan that was different from the one referenced in the case note the Applicant submitted. Furthermore, the Applicant did not provide any evidence to support his complaint that the Society did not give him an opportunity to be heard regarding the plan for the children before the court order was made. The Board heard from the Applicant himself that the Society had concerns about the impact of the marital conflict on the children, recognized the need for there to be a period of time for the domestic situation to resolve and saw the need for an assessment or assessments to help provide direction for the future. Therefore, the Board dismisses this complaint. In so doing, the Board recognizes that the Applicant believed that the Society should not have supported a custody arrangement placing the children in the care of a mother whom he believed suffered from a number of disorders that had not been fully investigated by the Society. However, the fact that the Applicant disagrees with the ultimate position taken by the Society does not mean that his concerns were not heard.
Issues #3 – Failure to Provide Reasons
19The Applicant clarified the details of this complaint through a number of examples that drew upon information in an affidavit by K.P. dated February […], 2009. The Applicant pointed out that the Society’s supervision of the children as ordered by the court in July 2008 was miniscule and not meaningful. The Society only met with the children six times as set out in paragraph seven of the affidavit of K.P.. Assuming that each meeting was three hours in duration, the meetings, as a percentage of the time that the children were under the Society’s supervision, amounted to less than one half of one percent. The Applicant was never given an explanation of how the children were presenting and what occurred during these meetings. He also cited a contradictory statement made in paragraph ten of this affidavit regarding the children’s comments about him. The children were quoted as stating that he had “no emotion” and that he is “angry”. Finally, he alleged that the Society had not made any attempts to keep him informed about his sons. He learned through the affidavit that his sons want to see him again in the future, but they were not ready to see him at this time. This was the first time that he heard this. He testified that on January […], 2009, he had requested information about his sons from Ms. K.P. He testified that he had to badger the Society for information. He received a two sentence response to his inquiry about whether his children received his Christmas gifts and their response to his gifts. Since he filed his complaint with the Board, he has received two reports in February, a five sentence report and a ten sentence report from Ms. S.R..
20The Society did not lead any evidence on this complaint and relied upon the evidence tendered by the Applicant.
21The Board heard from the Applicant that he had several grave concerns about the mental health of the children’s mother and, in particular, his belief that she was engaging in a form of emotional abuse, PAS, which isolated him from them and that she was exhibiting signs of abusive behaviour (MBP). The Court order further isolated him from the children leaving them in the care of a mother about whom he had serious concerns.
22The Board finds that the Applicant was not given reasons for the manner in which the Society implemented the terms of the Court order regarding supervision of the children since the Applicant has not had access to his children since he moved out of the family home. The Board also finds that the Applicant was not heard regarding his requests for information about the children. Furthermore, he was not given reasons for the lack of information conveyed by the Society about the children particularly as relates to their contact with their father given his wishes, his concerns, his relationship with them and their best interests. The Board therefore orders the Society to provide written reasons to the Applicant for the manner in which the Society supervised the situation with his children given his concerns and reasons for the manner and frequency of communication with the Applicant regarding the children.
CONCLUSION
23The Board understands the upset and frustration experienced by the Applicant in these matters and notes that many of the considerations raised during the hearing are matters which are clearly before the Court and subject to determination in that forum. The Board dismisses the first and second complaints for the reasons given. Regarding the third issue, the Board orders the Society to provide written reasons to the Applicant, with a copy to the Board, for the manner in which the Society supervised the situation with his children given his concerns and reasons for the manner and frequency of communication with the Applicant regarding the children. The Board orders the Society to comply with this order within 14 days of the date of this decision and the Board remains seized of this Application pending full and meaningful compliance by the Society.
Gregory Price Presiding Member
Gail Gonda Board Member
Mary Wong Board Member
Dated at Toronto, Ontario this 4th day of May, 2009.