E.H. v. Windsor-Essex Children’s Aid Society, 2012 CFSRB 24

CHILD AND FAMILY SERVICES REVIEW BOARD

E.H.

v.

Windsor-Essex Children’s Aid Society

REASONS FOR DECISION

Date: July, 13, 2012

Citation: 2012 CFSRB 24

Indexed as: E.H. v. Windsor-Essex Children’s Aid Society

(CFSA s.68)

INTRODUCTION

1E.H. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on February 6, 2012. He is complaining about the Windsor-Essex Children’s Aid Society (the “Society”) pursuant to subsection 68.1(4) 4 and 5 of the Child and Family Services Act (the “Act”).

2The Application was determined eligible on February 13, 2012 and in a Pre-hearing report dated April 27, 2012, the Applicant acknowledged that his application consists of the following issues:

That the Society has not heard his service concerns or heard him when decisions were made and has not provided him with reasons for decisions that affected his interests, regarding the following:

1. The Society stating in a letter dated May [ ], 2009 to [the doctor] that his ex-wife “has a serious history involving domestic violence”.

2. The Society stating in the letter dated May [ ], 2009 to [the doctor] that “there could be serious risk to the child” if the Applicant returned to the local area.

3The Board conducted a hearing on June 28, 2012. The Board finds in favour of the Applicant on the two issues.

BACKGROUND

4The Applicant worked in the high technology field as a software engineer in [USA] in 2009 when the Society became involved. His wife had come back to Canada where she had family after the birth of their son. The Society became involved on May [ ], 2009 when the Applicant made a referral about his wife and son who was 13 months old at the time. The Applicant had heard from contacts in the community and was concerned about the physical health of his wife and son, that they may be suffering from malnutrition. He was also concerned about the mental health of his wife who he thought might be suffering from depression. The Society investigated and found no evidence of malnutrition. The issue of depression was also assessed and the Society found that the mother’s mental health did not affect the care of the child. During the course of the investigation, the mother made allegations of domestic abuse by the Applicant which the Society investigated. The letter to [the doctor] was written at this time. The Society verified domestic abuse and transferred the file to family service on May [ ], 2009 and closed the file on December [ ], 2009.

ANALYSIS

5The 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 reasons (explanations) relating to the decisions made. 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;

The reasons for the Board’s decision are set out below.

1. The Society stating in a letter dated May [ ], 2009 to [the doctor] that his ex-wife “has a serious history involving domestic violence”.

2. The Society stating in the letter dated May [ ], 2009 to [ ] that “there could be serious risk to the child” if the Applicant returned to the local area.

6At the time the letter was written by the Society to [the doctor], the Applicant had no knowledge that there were allegations against him involving domestic violence. He only found out later about the letter from court proceedings during his divorce. The Applicant further stated that legal counsel for the mother sent copies of the letter to his employers defaming his reputation and causing him to lose two jobs. The letter written on Society letterhead was sent to the family doctor to inform him of the mother’s history of domestic violence and to request him to contact the Society if he had knowledge that the father had returned as there could be serious risk to the child. The letter used definitive language that the mother had a history of domestic violence and the Applicant wanted to know how the Society came to that decision. He is asking the Society for the evidence and what reasons the Society had to come to the conclusion that the mother had a history of domestic violence and that the Applicant could be a serious risk to the Child.

7The Applicant stated that during the pregnancy, the mother wanted to terminate the pregnancy and blamed him for not agreeing. They lived in [USA] at the time and after the birth of the child, the mother came back to Canada with the excuse that she wanted to help her sister with her business in [city]. The Applicant felt that the sister had experience with children and could help the mother look after the child. He felt that his wife was suffering from post partum depression. The Applicant came to visit the mother and child in [city] and then went back to [USA] for his work. The mother then stopped communicating with him. Her phone was disconnected and she charged large amounts on his credit card. He came back to find out what had happened and was told by family members that she was angry with him and needed time to cool off. In May of 2009, he called police in [city] to locate the mother since her family had stopped communicating with him. He was worried about his son and police advised him to contact the Society.

8The Society investigated the Applicant’s concerns of the mental health of the mother and the physical health and malnutrition of the mother and child. [ ], the Intake Worker, received the case on May [ ], 2009 and visited the mother on May [ ], 2009 to do a general safety assessment. The Intake Worker conducted a lengthy interview, talked to the mother about her mental health and sent letters to physicians treating her and spoke to collaterals. The Intake Worker sent letters to social services, the apartment manager where the mother lives, her sister and brother-in-law outlining the concerns.

9During the visit, the mother made allegations of domestic violence. The Intake Worker contacted collaterals consisting of extended family members and people who knew the mother regarding the allegations of domestic violence. She was told that an ex parte restraining order was in place, that the mother had fled the United States out of fear for herself and the child, and the allegations of past and present harassing behaviour of the Applicant. She wrote the letter to [the doctor] on day two of the investigation.

10The Intake Worker testified that she verified the allegations of domestic violence and did not verify the Applicant’s concerns that the child or the mother was malnourished. The file was transferred to a family service worker on May [ ], 2009 to provide ongoing support to the mother.

11The Applicant stated that he spoke to the Intake Worker twice, the first time for several minutes and the second conversation lasted ten to fifteen minutes. The Applicant stated that the phone reception was poor. He said that the Intake Worker was very rude to him. The Intake Worker said that there was nothing wrong with the child and accused him of abusing the mother. Because of the bad connection, he was raising his voice. He claimed it was the Intake Worker who yelled at him and accused him. The phone was disconnected and he called back and left a message that the call was disrupted, that he may have seemed loud and that he would like to hear from the worker again. He was served with divorce papers and the restraining order at about this time. He believed that he could not contact the Society since he had a restraining order.

12The Intake Worker attempted to contact the Applicant and left voice messages on May [ ], [ ], and [ ] for him to return her call. The Applicant called her on May [ ], 2009. She said that the Applicant was screaming at her, blamed her for the divorce papers, and hung up on her. He then left her a voice message indicating that the call was disrupted and that he would “love” to hear from her. The Intake Worker did not call him back. She consulted with her supervisor who gave her direction to give the Applicant time to cool down and they can have a more productive conversation later on. The Intake Worker stated that she attempted to discuss the allegations of domestic violence with the Applicant but was not successful. She did not write a letter to the applicant advising him that they had investigated allegations of domestic abuse and that these allegations were verified, nor did she write giving reasons for that decision.

13The mandatory Child Protection Standards in Ontario require parental involvement including an interview of the alleged maltreating parent (Standard #3). The Society’s failure to meet this minimum standard is evidence of the Applicant not being heard.

14To be heard means that a person has a chance to tell his side of the story, in a respectful context where the society listens with an open mind. It is to give them an opportunity to have some degree of influence on decisions that affect their interest. In this case, the Society made a decision to verify the mother’s allegations of domestic violence without giving the Applicant an opportunity to be heard. There was only one phone call of significance, and during this call there was no evidence of any communication since there were allegations of yelling by both parties, a bad connection and the call was terminated either by a bad connection or the Applicant may have hung up. The Society was investigating very serious allegations about the Applicant and had the onus to communicate with the Applicant and listen to him in a respectful context. When the Applicant called back wanting to resume communications with the Society, the Intake Worker did not return his call under directions from her supervisor. The Society then made a decision to verify the allegations of domestic violence.

15The Society also made the decision to write the letter to the doctor which contained conclusions and a request that would seriously impact on the Applicant. There was no evidence that the Applicant was consulted prior to this decision being made. These decisions have greatly impacted the interests of the Applicant. Section 2 2(a) of the Act clearly states that service providers have the duty to give parents the opportunity where appropriate to be heard when the service providers make decisions affecting their interests. In this case, the Board finds that the Society did not give the Applicant the opportunity to be heard.

16The Society has the onus of giving reasons for decisions they make which affect the interests of the Applicant. The Society made the decision that the mother had a history of domestic violence and that the child could be at risk with the Applicant. According to Standard #7 of the mandatory Child Protection Standards in Ontario the reasons were not communicated during the phone conversation described above. The Society never called the Applicant to return his call and never provided the Applicant with reasons in writing. The Board finds that the Society did not give the Applicant reasons for their decision. Further, the Society made the decision to write to the family doctor to provide information about the Applicant, to state that he posed a risk and to ask the doctor to notify them should he return to the area. The Applicant was not aware of this decision and thus was clearly not given reasons for it.

CONCLUSION

17The Board finds in favour of the Applicant.

18The Board orders the Society to provide detailed written reasons including what exactly they “verified” as against the Applicant, the reasons for their verification about domestic violence; their reasons for writing to the family doctor, and their reasons for the conclusions and requests contained in the letter to the family doctor. The Society shall provide these reasons to the Applicant within 15 days of this decision.

CONFIDENTIALITY ORDER

19Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.

Ruth Ann Schedlich

Ruth Ann Schedlich Presiding Member

Frances Sanderson

Frances Sanderson Panel Member

Mary Wong

Mary Wong Panel Member