A.G.

Children’s Aid Society of London & Middlesex

REASONS FOR DECISION

Date: December 7, 2011

Citation: 2011 CFSRB 45

Indexed as: A.G. v. Children’s Aid Society of London & Middlesex (CFSA s.68)

INTRODUCTION

1A.G. (“Applicant”) filed an application with the Child and Family Services Review Board (“Board”) complaining about the Children’s Aid Society of London & Middlesex (“Society”) pursuant to subsection 68.1(4) 4 and 5 of the Child and Family Services Act (“Act”).

2The application was initially submitted on June 13, 2011, and was followed by a Pre-Hearing Report on July 20, 2011. An additional complaint was submitted on July 27, 2011 and on consent, this complaint was added to the original application. In the second Pre-Hearing Report dated August 24, 2011, the Applicant acknowledged that his application consists of the following three complaints:

That the Society failed to hear the concerns of the Applicant regarding an assault of the Applicant’s son by the partner of the child’s mother in 2009;
That the Society failed to hear the concerns of the Applicant regarding a statement by a Society worker that a clear criminal background check had been obtained for the mother’s partner when the Applicant learned later that the mother’s partner in fact has a criminal record;
That the Society failed to hear the concerns of the Applicant regarding an assault upon his son by the mother’s partner in May/June 2011.

3The Society took the position that the application should be dismissed because the Society did hear and listen to the concerns of the Applicant, and that the Society did give the Applicant reasons for the actions it took. It is the Society’s position that the various workers assigned to the family were always open to meeting with the Applicant, and were always open to discussing issues.

4The Board held a hearing on November 7, 2011. After careful review of the evidence, the Board dismisses the Applicant’s complaints, for the reasons that follow.

BACKGROUND

5The Applicant resides in [City], and he and his former spouse K.R. separated in December 2006. They are the parents of three children: S., born in 1998; K., born in 2000; and K2 [the Child], born in June 2002. The Applicant’s complaints about the Society revolve around [the Child] [ ]. By court order dated April […], 2009, both parents have joint custody of the three children.

6The Children’s Aid Society of London & Middlesex became involved with the family in September 2007, upon referral by the [Police]. The initial anonymous tip alleged that marijuana plants were being grown in the house. This allegation was followed-up by the police, but was not substantiated. This contact with the Society was followed up by the Applicant, who reported concerns regarding the care of his children while they were with his ex-wife. The Society has been involved with this family since the initial referral.

PRELIMINARY MATTERS

Having child appear as witness

7The Applicant brought an oral motion seeking to have his oldest daughter, S., age 13, appear before the Board to give evidence. The Applicant stated that S. could verify the incident of assault referred to in the third complaint as she had seen the skin puncture caused by the mother’s current partner. The Applicant also confirmed that his daughter was not a witness to any of the interactions he had with the Society.

8The Society took the position that the child should not be a witness. The Society argued that the Board’s role is not to verify if the alleged event occurred. Rather the issues before the Board are whether the Society responded when the Applicant raised his concerns and whether the Society told him what the conclusions were. The Society also argued that no child should be in a position to testify against their mother. Further, the Society submitted that the testimony the Applicant is expecting the child to give about the alleged puncture wound, is expert evidence and the child is not qualified to give such evidence.

9One of the criteria considered before anyone appears as a witness before the Board is that their testimony must be relevant. The Board ruled that the testimony of the Applicant’s daughter would not be relevant. Whether or not there was a bruise on the Applicant’s son is not a relevant consideration before the Board. The issue before the Board is not whether an assault did or did not take place, but rather whether the Society heard the Applicant and provided adequate information to the Applicant about its actions. Further, the Board wants to get the best evidence, which would come from the Applicant and/or other witnesses that were present when the Applicant interacted with the Society and could give evidence on that interaction. As the child, by the Applicant’s own admission, was not present for any interactions between the Society and the Applicant, she would not be able to provide any relevant testimony. As the child’s evidence which she was expected to give is not relevant, the Board determined that it would not have the child testify. As well, the Board is reluctant to involve young children in legal procedures unless their testimony is critical to the case, especially in situations where the parents are in an adversarial position.

Amendment to Pre-hearing Report

10There is an error in complaint number 1 as stated in the Pre-Hearing Report dated August 24, 2011. The year should read 2007 instead of 2009. On consent, this pre-hearing report is amended so that complaint number 1 should read as follows:

The Society failed to hear the concerns of the Applicant regarding an assault of the Applicant’s son by the partner of the child’s mother in 2007.

ANALYSIS

11The main issues for the Board are whether the Society heard the Applicant as required when decisions were made or when he raised service concerns, and whether the Society provided him with explanations relating to the decisions made that were identified as of concern by the Applicant. The Board’s authority and the Society’s obligations are found in the following sections of the Act:

Matters for Board Review

68.1(4) The following matters may be reviewed by the Board under this section:

(4) Allegations that the society has failed to comply with clause 2 (2) (a);

(5). Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

Duties of Service Providers

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;

12The Board will address complaints identified as numbers 1 and 2 first, followed by the complaint identified as number 3.

Complaint #1: That the Society failed to hear the concerns of the Applicant regarding an assault of the Applicant’s son by the partner of the child’s mother in 2007,

and

Complaint #2: That the Society failed to hear the concerns of the Applicant regarding a statement by a Society worker that a clear criminal background check had been obtained for the mother’s partner when the Applicant learned later that the mother’s partner in fact has a criminal record.

13The Applicant alleges that after he found out in 2007 that his ex-wife’s then partner had a criminal record, he reported his concerns to the Society and asked the Society to check into his background. His evidence is that the social worker told him she had done a background check on the partner, and that everything was fine. The Applicant testified that he had contacts with Interpol and that these contacts, as well as his lawyer gave him some information, confirmed that the partner indeed did have a criminal record.

14The Applicant in his evidence gave a lengthy outline of how he believes his children, and specifically [the Child], were mistreated by the then partner of the child’s mother. Specifically, there is the allegation that the partner hit [the Child] around mid-2007, but that the Applicant did not find out about this assault until the summer of 2010. However, the Applicant related that [the Child’s] behaviour deteriorated significantly in September 2007, that he became a bully at school and that he became very insecure and was not learning at school. The Applicant also indicated that [the Child] now is aggressive, hyper-active, has ADHD and is possibly bi-polar.

15In the summer of 2010, when he discovered the assault on [the Child], the Applicant approached the Society and asked that the Society to re-open its investigation into the 2007 assault.

16The Applicant believes that had the Society heard his concerns back in 2007 about his ex-wife’s partner and had conducted a proper investigation into the partner’s criminal record, his son [the Child] would not be as scarred as he is today.

17[Supervisor], Supervisor in the Family Services Department and [Manager], Program Manager, both gave evidence to support the Society’s position with regards to these complaints. [Supervisor] was asked by [Manager] to conduct a file review after the request to re-open the 2007 investigation was made by the Applicant in 2010.

18[Supervisor] in her testimony clarified the issue of a background check. She explained that there are three levels of background checks. There is an internal check which checks both the Society’s internal records and the records of all societies in Ontario to see if a named person is identified as having been previously involved in a child protection investigation. She testified that if the internal checks revealed prior or ongoing involvement with a society, the Society was not at liberty to share that information with the Applicant. There also is a province-wide child abuse registry which any Society can search to determine if the person is named. It was her evidence that neither the internal records check nor the provincial child abuse registry will show if the person has a criminal record.

19The third level of background check is a criminal record check. This is done by the police and requires the subject person’s written consent. [Supervisor]’s evidence is that the Society did not have such consent. Thus, the Society was not in a position to do a criminal record check. As well, the Society cannot share with other third parties the result of such a check by police.

20After review of the 2007 investigation, [Supervisor] was of the opinion that when the Applicant was told that “everything was fine”, the Society meant that it found nothing of concern and that there was no need to do anything further to protect the children.

21[Supervisor] met with her Manager, [Manager] and they both agreed not to re-open the investigation. [Supervisor] testified that no new evidence was presented to warrant another investigation and the partner of the child’s mother in 2007 had by now permanently left the family. This was confirmed by [Manager] in her testimony. The Society’s decision not to re-open the investigation was conveyed to the Applicant in the December […], 2010 letter and in the undated letter from [Manager] which makes reference to a meeting on April […] 2011.

22The Board finds that the Society did comply with its statutory obligations under the Act. Although the Applicant’s allegations are that he was not heard or given reasons for decisions which affected his interests, neither he nor his only witness J.E. were able to provide any evidence that this was so. The Applicant agreed that no Society worker had ever failed to meet with him or to hear his concerns. Further, the Applicant admitted that he had received the December 2010 and the undated 2011 letters. Both of these letters explained in some detail various aspects of the Society’s responses to these complaints. The letter dated December […], 2010 also made reference to the fact that the Applicant had already received copies of the Society’s records regarding his concerns about him and his children.

23Further, as the Applicant stated in his evidence, he was aware of the partner’s criminal record in 2007 through his lawyer and later through a contact with Interpol, yet at no time did he share that record with the Society. If that was the case and given that the Society had no right to access this information, then the Applicant should have provided a copy of the criminal record in his lawyer’s possession, to the Society,

24The Board, under subsections 68.1 of the Act, must determine whether the Society failed to listen to his concerns and provide him with reasons as alleged in complaints numbered 1 and 2 of his application. The Board has determined that the Society did comply with the requirements of subsection 2(2)(a) of the Act, in listening to his concerns and with subsection 68.1 (4) 5, by providing him with reasons for decisions which affected his interests. Therefore these complaints are dismissed.

Complaint #3: That the Society failed to hear the concerns of the Applicant regarding an assault upon his son by the mother’s partner in May/June 2011.

25The Applicant testified that in June 2011 (likely on June […]), he noticed a cut on [the Child’s] left forearm, in the shape of a thumbnail. He learned from his daughters that this cut was sustained when the mother’s new partner, H., impatiently grabbed [the Child’s] arm to pull him out of the van. The Applicant called the police, but they did not respond and there is no written report from the police. The Applicant did take a picture of the cut. The Applicant testified that he called his worker at the Society, B.M. [“the Child Protection Worker”].

26[The] Child Protection Worker testified that during this call, the Applicant was unable to identify which arm the bruise/injury was located. However, due to the serious nature of the allegation, she made an unscheduled visit on June […], 2011(the day after the alleged incident occurred) to the mother’s house. [The Child] was not home at the time of her visit, however she spoke with the children’s mother and the Applicant’s two older daughters, S. and K.. [The Child Protection Worker’s] evidence is that during her private interviews with the girls, both confirmed that their mother’s current partner was upset and yelled at [the Child] as he was acting out, but neither recalled that there was any bruising or injury. Their mother confirmed her partner had yelled at [the Child] and that she had grabbed [the Child’s] arm as he had tried to run into traffic.

27[The Child Protection Worker] testified that she did not see [the Child] until June […], 2011, and had a private interview with him, at which time [the Child] told [the Child Protection Worker] that H. had not caused any bruise on his arm. He also told her that he had lied to his father about it because he did not want to talk about his mother’s partner anymore. At the June […] visit, [the Child Protection Worker] did not see any cut, nor was a scab or scar visible.

28The Applicant recalled that on July […], 2011 [the Child Protection Worker] contacted him to advise of the outcome of her investigation. His testimony is that she advised him that the allegation was not verified and that it was his ex-wife who did it. He recalls feeling brushed off and that the Society did nothing.

29[The Child Protection Worker] recalled that the Applicant was surprised by his daughters’ comments since they had told him something different than what they had told her. [The Child Protection Worker], who has 10 years experience in the child protection field, testified that children often tell two different stories their parents, when the parents do not have a friendly relationship. The children try to be loyal to the parent they are with. She further opined that [the Child] is impacted emotionally because of the lengthy negative relationship between his parents.

30The Board heard evidence and there was no evidence submitted that the Society did not hear the Applicant, or give him reasons for its actions. The Applicant acknowledges that at no time did Society personnel refuse to meet or speak with him. On questioning, the Applicant reluctantly admitted that the Society heard his concerns and interviewed the children, however, it responded in a different direction than he would have wanted them to. It is also clear that the Society did provide him with reasons for the decision not to do anything further with respect to the alleged injury to his son.

31The Board finds that the Society complied with its statutory obligations with respect to this complaint. As such, this complaint is also dismissed.

32The Society had sent two lengthy letters to the Applicant, explaining its views and the reasons for doing or not doing certain things. In those letters, the Society also explained to the Applicant that the Society needs to work with both him and with his ex-wife, as parents who share custody of their children. It is very clear to the Board that the Applicant on numerous occasions did not accept or agree with the reasons and explanations given to him by the Society.

CONCLUSION

33The Board finds that the complaints raised by the Applicant against the Society under subsections 68.1(4)4 and 5 of the Act are unfounded. Therefore the Board orders, under subsection 68.1(7)(e) of the Act, that the application is dismissed.

Denyse Diaz

Presiding Member

John F. Spekkens

Board Member

Heather Hunter