CHILD AND FAMILY SERVICES REVIEW BOARD
M.E.
v.
Children’s Aid Society of Owen Sound and the County of Grey
REASONS FOR DECISION ON MERITS
Date: November 9, 2009
Citation: 2009 CFSRB 66
Indexed as: M.E. v. CAS of Owen Sound & the County of Grey (CFSA s.68)
INTRODUCTION
1On March 27, 2009, M.E. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Children’s Aid Society of Owen Sound and the County of Grey (the “Society”) pursuant to sections 68 and 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). On May 15, 2009, the application was found to be eligible for review under s. 68.1(1) and 68.1(4).
2The parties participated in a settlement facilitation process on July 30, 2009 and reached an agreement. On August 13, 2009, the Applicant filed a letter with the Board alleging that the Society had failed to comply with the terms of the Settlement Agreement. A teleconference was held to determine whether the Society had complied with the terms of the Settlement Agreement. The Board member who facilitated the settlement meeting heard the parties at the teleconference and issued a decision that the terms had not been complied with and an oral hearing would proceed. The Society disagreed with the position taken by the Applicant and with the Board’s decision to proceed to an oral hearing because of its finding of non-compliance.
3The Applicant alleged that the Society had not given him reasons for sending a letter concerning him on February […], 2009, addressed to “To Whom it May Concern”. The Society argued that it had fully explained its intent for that letter, as agreed to by the parties in the Settlement Agreement, in a letter sent to the Applicant on August […], 2009.
4On October 23, 2009, the Board proceeded to hear the Applicant’s complaint that the Society failed to give him reasons for writing and distributing the letter of February […], 2009. For the reasons that follow, the Board has determined that the Society failed to provide written reasons to the Applicant as required under section 68.1(4)5 of the Act.
BACKGROUND
5The Applicant is the biological father of two sons, each born by a different mother. N1., the first child, was born in 2001. The Society commenced child protection proceedings for this child. He was made a Crown Ward with no provision for access on March […], 2003; the Society then closed its file on the Applicant. The Society has not had a file open in relation to the Applicant since that time.
6The Applicant’s second child, N2. (the “Child”), was born September […], 2008. The Society was aware of past conflict between the Applicant and the child’s mother, A.G.. It opened a file in relation to Ms. A.G. before the Child was born. That file was closed on December […], 2008. Ms. A.G. commenced Custody and Access Proceedings regarding the Child; proceedings that were before the Ontario Court of Justice [ ] in February, 2009 that did not involve the Society.
7The Applicant had first complained to the Board about the Society on November 26, 2008. The issues under complaint in that application were fully settled as the result of a settlement facilitation meeting held on January 22, 2009. The terms of the settlement were formalized by way of a Settlement Agreement with an implementation date of February 20, 2009 and a non-compliance date of February 25, 2009. On March 6, 2009, the Board informed the Applicant that the file was closed regarding this initial application as it had received no indication that the settlement terms were not fully complied with.
8The letter dated February […], 2009 that forms the subject of the current complaint was prepared by two of the Society’s workers, namely A.C., Child Protection Worker and J.D., Manager, Protection Department. It was drafted in response to a request from the lawyer representing Ms. A.G. in the above-mentioned Custody and Access proceedings. However, the letter was sent to unknown recipient(s) as it was addressed to “To Whom it May Concern”. The letter contained one sentence. “Given the Society’s involvement with M.E., the Society would have concerns if Mr. M.E. were to have unsupervised access with his child at this time”. The Applicant testified that he first became aware of the existence of the letter when it was shown to him by his lawyer, who told him he received it from A.W., counsel representing the mother of the Child in the Court proceedings.
9The Applicant wrote to the Board on August 13, 2009 to complain that the Society had not fulfilled the terms of the settlement agreement. The Board and the parties held a teleconference on September 4, 2009 to determine whether the Society had complied with the Settlement Agreement. On September 11, 2009, in its Reasons for Decision on Non-Compliance, the Board ruled that the Society had not complied with the terms of the Settlement Agreement and that the application would proceed to a hearing on the one unresolved issue.
10The Society disagreed with this ruling and requested that the hearing should first determine if there was in fact non-compliance. On September 17, 2009, the Chair of the Board informed the Society that the panel hearing the matter cannot re-visit the issue of compliance and that the hearing would proceed on the original complaint relating to whether or not the Society provided reasons to the Applicant for writing the letter of February […], 2009. On October 16, 2009 the Chair of the Board re-affirmed that the hearing would proceed as stated in its letter of September 17, 2009.
Procedural Matters
11The Board dealt with one procedural matter at the outset of the hearing. Counsel for the Society contended that the panel could not hear the merits of the Applicant’s complaint regarding the single outstanding item from the terms of the Settlement Agreement without knowing what those settlement terms were. Counsel for the Society further submitted that before the panel could hear the merits of the complaint it had to decide if there was non-compliance.
12All information relating to the Board’s settlement process is confidential and sealed from the members hearing the application at an oral hearing. However, in the current case there was no further pre-hearing conference to identify the issues for hearing. In order for this panel of the Board to understand the issue that was not complied with and is hence the subject of the oral hearing, the parties consented to waive their right to confidentiality allowing the panel hearing the complaint to read the Reasons for Decision on Non-Compliance.
13The Board’s settlement agreement process is laid out in the Participation Agreement, which was signed by the parties, as follows: “Should the facilitator determine that there has been non-compliance with the settlement terms, the matter will then proceed to an oral hearing on the issues relating to the settlement terms not implemented.” This process was reiterated by the Chair in her letter to the Society of September 17, 2009. The panel confirmed that it would not be hearing argument on non-compliance at the oral hearing.
14The non-compliance decision identified only one issue, which was the same one outlined in a subsequent letter from the Chair of the Board to Counsel for the Society, dated October 16, 2009, as follows: “Whether or not the society provided reasons to the Applicant for writing the letter of February […], 2009.”
RELEVANT LEGISLATION
15The Board has considered the following legislative provisions in arriving at its decision:
68.1(4)
The following matters may be reviewed by the Board under this section:
- Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
ANALYSIS
The Board must determine if the Society provided reasons to the Applicant for its decision to write and distribute the letter of February […], 2009; a decision that affects the Applicant’s interests.
16The Applicant testified that the letter of February […], 2009 caused him much grief. He alleged that the letter was partly responsible for the requirement that he return to counselling; something he had not needed for several years. He further alleged that the letter was in part responsible for restricting him to supervised access to his son.
17The Applicant testified that he has serious concerns that the letter breached his confidentiality, as he has no idea who received it. While he acknowledges counsel for his son’s mother has a copy, he is unaware as to who else may have received the letter. Being addressed “to whom it may concern”, he states, means anyone could have received it. He also feels addressing the letter “to whom it may concern” is highly unprofessional. Further, the letter is extremely damaging to him yet extremely short, failing to give a balanced picture. It does not mention, for example, that he had unsupervised access with his first son during the time of the Society’s involvement with the family. He is also concerned that it makes conclusions based on very outdated information. The Applicant had asked that the authors of the letter be made available for cross examination as he suspects, from the content of the letter, that they wrote it without having read his entire file. He argued that Society staff should recognize their errors and be involved in suggesting ways to fix them. The authors were not offered as witnesses at the hearing.
18The Applicant stated that he wishes to receive a letter from the Society describing why it decided to draft and distribute the letter of February […], 2009. He wants the Society to provide reasons for four specific concerns.
In December, 2008 the Society closed a file regarding the mother of the Child. The Applicant wants the Society to provide him with reasons why it wrote the letter of February […], 2009 after this file was closed.
The letter of February […], 2009 was not addressed to any specific person. The Applicant wants the Society to provide him with reasons why the letter was addressed to “To Whom it May Concern”.
The Applicant stated he was permitted to have unsupervised access to his first child. He wants the Society to provide reasons why it wrote that it would have concerns if he were to have unsupervised access with his child at this time, and why it did not mention his past unsupervised access.
The Applicant requested that the letter containing the Society’s reasons should also include an admission of their mistakes by A.C. and J.D..
19During cross-examination of the Applicant, the Society suggested that any letter it might write would include clarification of a fifth item, namely the identities of the recipients of the letter of February […], 2009. The Applicant agreed with this proposal.
20The Society called no oral evidence and decided to rely on its documents and submissions. The Society indicated that it was prepared to write a letter to address the fifth item as described above and concerns number 1, 2, and 3 as described above. The Society would not consent to concern number 4, however, as it is not included in the concept of “reasons” for a decision taken by the Society.
DECISION
21Based on the uncontradicted testimony of the Applicant that he did not receive reasons from the Society as to why the February […], 2009 letter was written, the Board concludes that the Applicant did not receive reasons for a decision made by the Society that affected his interests. Accordingly, under section 68.1(7)d of the Act, the Board orders the Society to provide written reasons to the Applicant addressing concerns 1, 2, 3 and 5 listed in paragraphs 19 and 20 within fourteen (14) days after the Board issues its decision.
Heather Gibbs
Presiding Member
Ruth Ann Schedlich
Panel Member
John Gates
Panel Member
Dated at Toronto, Ontario on this 9th day of November, 2009.