J.E. v. Chatham-Kent Children’s Services, 2012 CFSRB 1

CHILD AND FAMILY SERVICES REVIEW BOARD

J.E.

v.

CHATHAM-KENT CHILDREN’S SERVICES

REASONS FOR DECISION

Date: January 3, 2012

Citation: 2012 CFSRB 1

Indexed as: J.E. v. Chatham-Kent Children’s Services

(CFSA s.68)

INTRODUCTION

1J.E. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on May 10, 2010. He is complaining about the Chatham-Kent Children’s Services (the “Society”) under subsection 68.1(4) 4 and 5 of the Child and Family Services Act (the “Act”).

2The application was put on hold pending the appeal of the decision of Children’s Aid Society of Waterloo v. D.D. and the hearing was held on December 8, 2011.

3The Applicant is complaining that the Society did not hear him or give reasons for a number of issues: why counselling for him and his son was not resumed; why approval for a designate to supervise his access visits was given sometimes and not at other times; why the Society did not explain why it did not support access visits in the community, and why the Society did not give him an opportunity to tell his story. He also complains that the Society did not proceed with his complaint to an Internal Complaints Review Panel (“ICRP’) as he had requested.

4The Society’s position is that the Applicant’s complaints are all issues which are before the Court and that the Board cannot hear this complaint. The first issue for the Board is whether it has jurisdiction to hear the application. The Society argues that the Applicant had put the above issues except the complaint about the ICRP before the Court and submitted the affidavit of K.D., Child Protection Worker. The Board ruled that it had jurisdiction to hear the issues since the Court of Appeal in Children’s Aid Society of Waterloo v. D.D. determined that while the actual issues of custody and access were before the Court, service complaints were not, unless explicitly put to the Court for a decision. There was no evidence in this case that the Court was specifically asked to rule or had ruled on service complaints prior to the application to the Board.

5The Board heard the motion on jurisdiction on December 8, 2011 and proceeded to a hearing on the merits on the same day. The Board has determined that the Society did not give reasons to the Applicant for his complaint about joint counselling sessions with his son, the use of a [family] as designates, access visits in the community, and that the Society has not heard his story. The Board dismisses the Applicant’s complaint on the Society’s failure to proceed to an ICRP. The reasons for the decision follow.

BACKGROUND

6The Applicant is the father of [the Child] who is almost twelve years old. In May of 2008, the Society commenced a Child Protection Application based on risk of physical and emotional harm while the child was in the care of the Applicant. The application is still outstanding.

7There have been extensive Court proceedings in protection matters, contested motions on access and a trial which is ongoing.

8The Applicant is complaining that the Society has not given him reasons for issues relating to his access visits, counselling, refusal of an ICRP and that the Society has not heard his story.

ANALYSIS

9The main issue for the Board is whether the Society heard the Applicant and provided the Applicant with reasons for decisions that affected his interest. There is also an issue, addressed at the hearing as to whether the Society failed to proceed with the Applicant’s complaint, as required under the Act.

10This application is made under section 68.1(4) of the Act. Section 68.1 (4) of the Act gives the Board the authority to review the following matters:

68.1 (4) 1. Allegations that the society has refused to proceed with a complaint made by the complaint under subsection 68 (1) as required under subsection 68 (2)

68.1 (4) 4. Allegations that the society has failed to comply with clause 2 (2) (a);

68.1 (4) 5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

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;

11The Board may order the Society to provide written reasons for a decision to the Applicant pursuant to section 68.1(7) of the Act and can order the society to proceed with a complaint.

12The Applicant testified on his own behalf and did not call any witnesses. The Society did not call any witnesses and entered evidence while examining the Applicant.

1. Counselling for the Applicant and his Son

13The Board finds in favour of the Applicant on this issue.

14The Applicant complained that he wanted to resume a relationship with his son. He contacted the Society through his lawyer to inquire about counselling sessions with his son. Initially he received no response from the Society. After he filed his complaint with the Board, he was contacted by the Society to attend a meeting to set up counselling sessions. He had two counselling sessions with H.H., the Counsellor, from [Department] in June of 2010 in preparation for joint sessions with his son. Then the sessions stopped. He had set up more meetings, but then the Counsellor called and said that there would be no more sessions. He was concerned that the Counsellor was not a qualified therapist, that his son was suffering from post traumatic stress and he wanted a child psychologist involved in his treatment. The Applicant alleged that he was not given an explanation of why the counselling sessions stopped.

15The Society adduced evidence during the cross-examination of the Applicant that the issue of joint counselling was put before the Court and that reasons were given to the Applicant. The October […], 2010 affidavit of [the] Child Protection Worker, stated that the son made it clear to the Counsellor that he was not prepared to participate in joint counselling sessions with his father. Various orders were made by the Court relating to joint counselling which was eventually ordered after a psychiatric assessment of his son. The April […], 2011 letter from the Society’s counsel to the counsels of all the involved parties indicated that preparations were taking place to prepare for joint counselling sessions. However, the preparation work had not gone well with the son who became very emotional and cried throughout the session when he was told of the joint counselling sessions.

16The Board accepts the Applicant’s direct evidence that he was not given reasons why joint counselling sessions were not started at the time of his application. All the evidence relating to this issue occurred after the date of his application. There was no evidence to indicate that at the time of the application to the Board, the Society heard the Applicant and gave him reasons why he could not engage in joint counselling with his son. The Board finds that at the time of the Applicant’s application to the Board on May 10, 2010, he was not heard or given reasons. However, since that time, the issue has been before the Court and reasons have been given to the Applicant by the Society. The Board considers those to be adequate and does not make an order on this issue.

2. Approval of Designate

17The Board finds in favour of the Applicant on this issue.

18The Applicant complained that the [family] were approved as designates to supervise his access visits with his son in December of 2008. However, they did not supervise an outside access visit until November of 2010. They supervised three or four visits after that. The Applicant found out later from the case note of the Child Protection Worker, that his wife did not support the [family] as designates.

19The Society did not call any direct evidence in response to the Applicant’s complaint. While cross-examining the Applicant, the Society indicated that the Applicant presented the [family] as being very familiar with the son. However, it later learned that [the family member] had only met the son once when he was a baby, two other times in the community and once at a fireworks display at his home.

20The Board finds in favour of the Applicant since there was no evidence to show that at the time of the application, the Society had given reasons for its decision why the [family] were not used as designates. After the date of the application to the Board, the issue has been before the Court and reasons given to the Applicant. The Board does not order any written reasons.

3. Access Visits in the Community

21The Board finds in favour of the Applicant on this issue.

22The Applicant complained that the Society did not give him reasons why it did not support access visits in the community. He stated that he received information from the Child Protection Worker in February of 2009 that he would have no supervised visits until after his criminal matter was settled. After the criminal matter was resolved in March of 2009, the Applicant proceeded with a motion in Court for outside access.

23The Society adduced evidence while examining the Applicant that the reason why the Society did not support access in the community was given in several psychiatric assessments of his son. His son had made it clear that he only wanted to see his father at the supervised access centre and that he did not want to see his father at home or outside.

24The Board finds in favour of the Applicant on this issue since the Society did not call on any direct evidence to show that it had explained the reasons to the Applicant on this issue. Providing reasons indirectly through an assessment of the son is not sufficient. The Board finds, however, that reasons were given to the Applicant during the hearing and no other remedy is required.

4. The Applicant’s Story

25The Board finds in favour of the Applicant on this issue.

26The Applicant claimed that he never had a chance to tell his story. Essentially, his complaint is that the Society did not hear his version of events before making decisions. Constructive communication with the intake worker broke down in February or March of 2008, when she apprehended the Applicant’s son and as a result, he only communicated with the Society through his legal counsel. He met with the intake worker prior to the apprehension. He arranged a meeting with her in February of 2008, which he cancelled and she said she would reschedule it and she never called back. That meeting was to discuss his story.

27The Society indicated that the Applicant met with the intake worker prior to the apprehension. His file was passed on to another worker and then to the Child Protection Worker who met with him three times. There were numerous phone calls and he filed many affidavits detailing the history of his family. The Society’s position was that the Applicant chose not to engage with the Society worker and that he had an opportunity to tell his story. He chose to tell his story through his lawyer and filed six detailed affidavits of his story. According to the Society, it considered his story which was detailed in the affidavits in making its decisions.

28The Society did not call any witnesses to testify on its behalf. Therefore, the Board accepts the direct testimony of the Applicant that he did not get an opportunity to tell his story around the time of his son’s apprehension and finds in favour of the Applicant on this issue. The Board considers the reasons given to him during this hearing to be adequate and does not order written reasons.

5. Failure to Proceed with Complaint (Internal Complaints Review Process)

29The Board finds in favour of the Society on this issue.

30The Applicant stated that he called the Society in January of 2011 to complain about inaccuracies and deficiencies in the case note of E.C., a social worker with the Society. [The] Manager of Quality Assurance, returned his call on January […], 2011 and spoke to him about an ICRP. The Applicant officially complained to the Chief Executive Officer (“CEO”) in a letter dated January […], 2011. The reply letter of February […], 2011 to the Applicant from the CEO of the Society states that the issues reflected in the case note are issues currently before the Court, and therefore his complaint is ineligible to be heard by the ICRP. However, the CEO offered the available remedy to him. The Applicant can document the information he feels is missing and the worker will place it in his file. This information then becomes a part of his file.

31The Board finds in favour of the Society. The Society gave the Applicant a reason why his complaint cannot be heard. As provided by legislation under the Act, the society must respond within a certain time frame and determine eligibility. The Society replied to the Applicant within the appropriate time frame advising that it cannot hear a complaint in an ICRP if the issue is before the Court. The Society also gave the Applicant a remedy that would have been available to him had he been given the opportunity for an ICRP.

32The Board dismisses this complaint.

DECISION

33The Board finds in favour of the Applicant on the following issues:

• The Society did not provide reasons why it did not proceed with joint counselling sessions for the Applicant and his son.

• The Society did not give reasons why a designate was approved and then not used to supervise access visits.

• The Society did not give reasons why it did not support outside access visits.

• The Society did not give the Applicant the opportunity to tell his story.

34No written reasons are ordered for these issues.

35The Board dismisses the complaint regarding the Society’s failure to proceed with a complaint to an ICRP.

RICHARD LINLEY____

Richard Linley

Presiding Member