D.H. v. Family, Youth and Child Services of Muskoka, 2012 CFSRB 35

CHILD AND FAMILY SERVICES REVIEW BOARD

D.H.

v.

FAMILY, YOUTH AND CHILD SERVICES OF MUSKOKA

REASONS FOR DECISION

Date: September 6, 2012

Citation: 2012 CFSRB 35

Indexed as: D.H. v. Family, Youth and Child Services of Muskoka (CFSA s.68)

INTRODUCTION

1D.H. (the “Applicant”) filed an application on March 28, 2011 with the Child and Family Services Review Board (the “Board”). He was complaining about the Family, Youth and Child Services of Muskoka (the “Society”) pursuant to sections 68.1 (4) 4 and 5 of the Child and Family Services Act (the “Act”).

2The issues raised in this application and heard at the hearing are that the Society failed to comply with subsections 68.1(4) 4 and 5 namely:

• The Society did not hear the Applicant’s service concerns or hear him when decisions were made and the Society did not provide him with reasons for decisions that affected his interests, regarding his complaint regarding parental alienation syndrome, gender bias and the relationship between the Society and his ex-wife.

3The Board conducted a Hearing on December 14, 2011 and August 15, 2012. The Board finds in favour of the Applicant.

Background

4The Applicant is the father of a 9 year old daughter, [ ] (the “Child”). He is also the father of another child who is not the subject of this decision. He has joint custody of the Child. He wrote to the Executive Director (“ED”) of the Society on March [ ], 2010 outlining his concerns relating to an alleged pattern of Parental Alienation Syndrome (“PAS”) undertaken by the Child’s mother against him, gender discriminatory practices of the Society and the relationship between the Child’s mother and employees of the Society which he believed negatively affected how the Society treated him. He had expressed these concerns orally to Society workers on a number of occasions before he wrote to the ED.

5The Applicant chose to stop seeing the Child for 18 months starting in September 2010 because of what he perceived to be the unrelenting efforts on the part of the Child’s mother to interfere with his Court ordered access to the Child, his fear that the Child’s mother might continue to make false allegations against him and ultimately, the impact that this pattern of actions might be having on the Child.

Analysis

6The 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. 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;

7The reasons for the Board’s decision are set out below.

8The Applicant gave evidence regarding instances in which he believed that the Child’s mother was engaging in a pattern of PAS and that the Society was treating him in a discriminatory manner and that their treatment of him was influenced by the personal relationship between the Child’s mother and Society employees. The Applicant explained that the Child’s mother works for a social service agency in the same community as the Society and that she had relationships with Society employees.

9The Applicant cited a number of examples to support his position regarding PAS. These included allegations made against him by the Child’s mother that he had forced the Child to eat a plate of beans, that the Child was late for school while in his care, and that he had physically harmed the Child.

10He described how he and his current wife had been subjected to ongoing harassing behaviour from the Child’s mother. Furthermore, he described the behaviour of a Child Protection Worker (“CPW”) who had been involved in investigating the Child’s mother’s allegations made against him in January 2010 as being “extremely hostile” to the point where he requested that another worker be assigned to the case. The same CPW had also indicated in a case note dated January [ ], 2010 that the Child’s mother was present during the time the Child was being interviewed as part of an investigation into allegations made by the Child’s mother against the father.

11The Applicant described other instances of what he described as hostile and biased treatment by Society workers against him. These included a statement “need to go full force” with the Applicant in a case note dated October [ ], 2010 made by the CPW and for the purpose of documenting her consultation with one of her supervisors. This case note also included statements regarding “escalating behaviour” by the Applicant and “intake should initiate court action to stop next access visit”. According to the Applicant, these statements and advice to the CPW by one of her supervisors occurred before the Applicant had been interviewed by anyone from the Society regarding its concerns.

12Another instance cited by the Applicant was an oral threat made by the CPW to the Applicant’s current wife to the effect that unless the Applicant agreed to meet within a specified and short period of time, the worker would be stopping the Applicant’s access to the Child. The Applicant’s current wife confirmed this in her testimony to the Board. The Applicant cited these incidents as examples of gender bias and differential treatment due to a personal relationship between the Child’s mother and Society employees.

13On the basis of these and other incidents, the Applicant believed he was the victim of PAS directed against him by the Child’s mother, the victim of gender bias and mistreatment by Society workers who had a personal relationship with the Child’s mother.

14The Applicant submitted into evidence an undated case note made by the CPW that documented concerns regarding the Child’s mother’s interference in the Applicant’s access to the Child and the Child’s reactions to not seeing her father. The Applicant testified that these were further examples of PAS and the failure of the Society to respond to them were examples of gender bias and differential treatment because of the Child’s mother’s relationship with Society staff.

15On October [ ], 2010 the Applicant sent an e-mail to the Supervisor outlining concerns regarding the Child’s mother’s interference and a list of questions the Society should ask the Child in order to substantiate PAS. The Applicant testified that he did not receive a reply to this e-mail nor were his questions used to interview the Child to substantiate his concerns related to PAS.

16The Applicant had sent an earlier e-mail to the Supervisor outlining a chronology of events reflecting the harassing behaviour of the Child’s mother against him and his current wife. The chronology included 17 events and the Applicant made the Supervisor aware of another event following a discussion they had had and which he had documented in an e-mail dated October [ ], 2010. In this e-mail, the Applicant expressed again his belief regarding the Child’s mother’s continual efforts to harass him and his current wife and efforts to alienate the Child from him. The Applicant also expressed in the same e-mail his deep sense of hopelessness regarding the situation to the point where he expressed the view that “the only solution seems to be to let her (the Child’s mother) win for [the child’s] sake …… or until [the child’s] mother realizes that a father is important and wants to promote my relationship with [the child] instead of destroying it or [the child] reaches an age where she can decide for herself”.

17The Applicant e-mailed the Supervisor again on January [ ], 2011 and in this e-mail he stated, “when we last spoke you indicated that if there were additional malicious complaints the agency would/could take legal action. You promised me transparency.” The Applicant also clearly stated again his belief in the Child’s mother’s efforts to alienate him from the Child and the need for the Society to arrange for the proper professional to assess the matter to confirm or disconfirm it. He also stated the need for a qualified therapist to be providing counselling for his daughter and his right to involvement in the process as per the Court order.

18In summary, the Applicant testified that the Society did not take any of his concerns seriously, did not undertake any actions to substantiate those concerns, and did not explain their actions in relation to these concerns.

19The Board heard testimony from the Supervisor who had taken over case management of the Applicant’s file and direct contact with him in January 2010. The Supervisor stated that he was aware of the Applicant’s concern regarding PAS in January 2010. He stated that PAS is not on the eligibility spectrum used by the Society when it conducts child protection investigations nor is it a syndrome listed in the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) that is used by psychiatrists and registered psychologists for diagnostic purposes. He further stated that his concern was focused on what was happening to the Child in this case and determined that she was at risk of emotional harm due to what he perceived as conflict between her parents. The Supervisor testified that the Society arranged to provide counselling for the Child as a way to address the impact of the alleged conflict between the parents.

20The Society submitted into evidence an affidavit by the Supervisor that provided detailed information regarding the contacts between the Society and the Applicant. It documents information shared with several workers and the Supervisor by the Applicant regarding his concerns. The Society stated in the affidavit that the analysis of the Applicant’s concerns is indicative that the Society heard him. The conclusions drawn as stated in the affidavit indicate that the Society viewed the concerns of the Applicant and those of the Child’s mother as reflecting an inability for them to communicate and co-parent and concerns regarding the impact this was having on the Child. The affidavit states that the concerns of the Applicant were noted and analyzed and therefore he was heard.

21This Supervisor supervised the CPW assigned to conduct two investigations resulting from allegations made by the Child’s mother against the Applicant. These two investigations took place in January 2010 and October 2010. The Supervisor testified that he directed the CPW to take the Applicant’s allegations regarding PAS seriously. The CPW testified that she obtained some information about PAS through the Internet and kept it in mind when she conducted her investigations into the allegations made by the Child’s mother against the Applicant.

22Neither the Supervisor nor the CPW gave testimony that indicated that in their communications with the Applicant they acknowledged that PAS was a serious concern of his, that there was a need to determine if there was substance to the concerns raised by the Applicant and that they felt obligated to respond to the Applicant regarding his concerns including the Society’s opinion about PAS.

23The Applicant wrote to the Society’s ED on March [ ], 2010. His letter references a recent conversation with the ED regarding the concerns that the Applicant had about ongoing harassing behaviour against him by the Child’s mother, the Society’s gender bias and the relationship that the Child’s mother had with Society employees.

24The Applicant testified that he never received a written response from the ED. He sent a copy of the same letter to the new ED and again received no response. The Applicant had described in writing his concerns regarding PAS, gender discrimination and the relationship between the Child’s mother and Society employees. He received no response regarding these concerns from the ED.

25The Board heard no evidence from the Society regarding how it had heard the Applicant’s concerns regarding gender discrimination or the possible relationship between the Child’s mother and employees of the Society except for a statement made by the Supervisor and the CPW that they were not aware of any relationship between the Child’s mother and employees of the Society.

26It was evident to the Board that the Applicant had serious concerns regarding the actions of the Child’s mother and perceived those actions as an attempt on her part to alienate his daughter from him. Some of these actions were in the form of allegations that were made against the Applicant to the Society leading to child protection investigations. None of the allegations were verified. The Society had an obligation to receive the referrals from the Child’s mother, assess them and investigate them in accordance with its mandate and legal responsibilities.

27The Society also has a legal obligation to hear the concerns of parents regarding the services they are receiving and an obligation to provide them with reasons for the actions that it takes regarding matters that affect their interests. Making note of concerns expressed by the Applicant is not equivalent to hearing the concerns. The Applicant expressed his concerns multiple times in multiple ways to multiple Society employees including written complaints to two ED’s. The Society did not provide any substantive evidence to suggest that it took the Applicant’s concerns seriously, took any actions to address those concerns and made efforts, either orally or in writing to explain its reasons for its actions and the conclusions that it reached regarding his specific concerns.

28The Board concludes that the failure of the Society to respond to the Applicant’s concerns regarding PAS which he clearly articulated on many occasions left the Applicant to conclude that it did not consider his concerns to be of equal importance as compared to the concerns expressed to the Society by the Child’s mother which the Society responded to by undertaking investigations. The lack of response was indicative of not hearing the Applicant and led to the impression that the Society was biased against him on the basis of his gender and/or on the basis of a possible relationship between the Society and the Child’s mother. These further concerns were also not addressed.

29The Society did not give any evidence regarding its policies relating to conflict of interest and the need for its employees to declare a conflict in situations where clients may be known to them nor did the Society give evidence that it had made efforts to determine whether or not there was a personal relationship between the Child’s mother and any of the workers and supervisors who were assigned to the Applicant’s file. The Society did not give any evidence that it conducted its business in accordance with the Ontario Human Rights Code and had therefore the legal obligation to ensure that its actions did not discriminate on the basis of gender. The Society did not give any evidence that it discussed either of these matters with the Applicant. It is reasonable to assume that in the absence of any meaningful and substantive response to his concerns, the Applicant was left with the need to interpret what was going on and to fill in the gaps however he could.

30The Board observed the Applicant to be persistent and forceful in his manner during the proceeding. It may have been the case that the Society was intimidated by the Applicant’s persistent and forceful manner in communicating with them. However, that does not relieve the Society of its obligation as a service provider under the Act to hear him and to give him reasons for its actions. The Applicant stated in his own words what this might mean. The Applicant testified that he would have been satisfied that he had been heard if the Society had had a serious discussion with him regarding PAS and his other concerns. Further, he stated that he would have known that they had considered his concerns if they had put their views in writing to him or had taken some actions and as a result had arrived at an informed opinion about the matter and their reasons for that opinion. Ultimately, the Applicant was expecting a response that clearly reflected the concerns he had communicated to the Society.

31There is considerable controversy surrounding PAS and the Society testified that it did not consider it given that it is not on the eligibility spectrum used by the Society when it conducts child protection investigations nor is it a syndrome listed in the DSM IV. It may have been the case that the Society was diverted from verifying the concerns of the Applicant because of his labelling of these concerns as PAS.

32In Fiorito v Wiggins, 2011, Justice Harper of the Ontario Superior Court of Justice stated the following:

“I find that it is not necessary or helpful to engage in the controversy within the clinical profession about the merits of concepts of parental alienation, realistic estrangement, or family systems based “alienated child” approach. I do find that the focus on the concept of parental alienation creates an environment that could lead to narrow and limiting analysis of very complicated dynamics of family interaction that must be understood in order to find a solution that has the best chance of success. In this case, the pursuit of the label of PAS, diverted many of the professionals.

The relevant inquiry by assessors should not be the search for a diagnosis or a label. The relevant inquiry must be the critical review of the actions of the parents as they impact on the children’s functioning and their needs. If emotional abuse is a serious risk the professionals and the protection agencies must attempt to be more specific as to the cause of the emotional abuse and be more specific as to the depth of the negative consequences, both short term and long term on children in each case”.

33The Society did not give any evidence to suggest that it was concerned about the actions of the Child’s mother as described by the Applicant or that it addressed them in a manner consistent with its own standards and policies regarding allegations of abuse. The Society concluded that the Child was at risk of emotional harm because of the conflict between the Applicant and the Child’s mother although it did not present any direct evidence to support this. The testimony of the Applicant strongly suggested that he had little if any contact with the Child’s mother to support the Society’s position regarding conflict between himself and the Child’s mother. From the Board’s perspective, what is relevant here is the lack of engagement with the Applicant in the process leading up to and following this decision. The Applicant was not given the opportunity to explain his concerns about the mother nor was he given reasons why the Society drew the conclusions that it did and the basis upon which it arrived at those conclusions including any steps that it took to verify the concerns.

34In the absence of evidence to the contrary, the Society’s actions reflect a disregard of the Applicant’s right to be heard and right to be given reasons, i.e., an explanation of the Society’s actions regarding the decisions that it made relating to his concerns regarding PAS, gender bias and differential treatment because of a personal relationship between Society employees and the Child’s mother.

35The obligations under s. 68.1 (4) 4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to or understand and accept decisions.

36To be heard involves active listening, discussions, the Society’s taking steps to address an applicant’s concerns and communicating this so that an applicant feels that his or her concerns are taken seriously and investigated thoroughly. In this case, the Applicant was not interviewed at length regarding his concerns, correspondence was not responded to and there was no dialogue with the Applicant focused specifically on the concerns that he expressed to the Society.

37To meet the statutory obligation, reasons must be detailed and the Applicant must be given sufficient information to understand what factors were considered in making a decision and why. The Applicant was not given reasons for the Society’s lack of action or follow up. Clearly the Applicant was left with no answers and no basis upon which to understand what happened, if anything, and why.

38The Board concludes that the Society failed to meet its obligations to the Applicant under s. 68.1 (4) 4 and 5. The Board makes a corresponding order below.

DECISION

39The Board orders the Society to provide a detailed written explanation to the Applicant of the following:

1. The Society’s policy relating to conflict of interest as it pertains to relationships between Society employees and clients of the Society;

2. The actions that the Society took in order to determine the status of any relationship between the Child’s mother and any Society employee and the reasons for and outcome of those actions or lack of action;

3. The Society’s policy regarding implementation of the Ontario Human Rights Code as it pertains to discrimination on the basis of gender and a description of training provided by the Society to its employees in this regard including how that was applied to the Applicant’s allegations about gender bias or if not applied, an explanation as to why not; and

4. The Society’s position on PAS and reasons for its position.

5. The position of the Society and any actions that it took regarding the concerns expressed by the Applicant about the actions of the Child’s mother and the basis for that position and reasons for any action or lack of action.

The Board orders the Society to comply within 30 days of the date of this order.

CONFIDENTIALITY ORDER

40The order made on August 15, 2012 continues and is as follows:

Parties 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.