N.B. v. Family and Children's Services of Guelph and Wellington County, 2012 CFSRB 44

CHILD AND FAMILY SERVICES REVIEW BOARD

N.B.

v.

Family and Children’s Services of Guelph and Wellington County

REASONS FOR DECISION

Date: October 17, 2012

Citation: 2012 CFSRB 44

Indexed as: N.B. v. Family and Children Services of Guelph and Wellington County (CFSA s.68)

INTRODUCTION

1On June 16, 2012, N.B. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Family and Children’s Services of Guelph and Wellington County (the “Society”) pursuant to section 68.1 of the Child and Family Services Act (the “Act”). The application was not properly signed. On June 20, 2012 a supplementary application, containing the same information and correctly signed by the Applicant was received by the Board. The application was found to be eligible for review under sections 68.1(4)4 and 68.1(4)5 on June 22, 2012.

2The application currently before the Board is the second application from the Applicant. The Board heard her previous allegations at a hearing early in 2012 and rendered a decision on those allegations in early March, 2012. The current application covers matters that occurred between March [ ], 2012 and June [ ], 2012.

3A pre-hearing conference for the current application was held on July 30, 2012. The Applicant alleged that the Society has not heard her service concerns or heard her when decisions were made and has not provided her with reasons for decisions that affected her interests regarding two matters:

• The Society’s letter to the Court sent on or about March [ ], 2012.

• The Society’s failure to provide the court, police or applicant with relevant information concerning the safety and well-being of the applicant and her child.

4The Society disagreed with the allegations and felt that it had been compliant with all aspects of section 68.1(4) of the Act.

5The Applicant’s allegations and the Society’s responses were heard by the Board at an oral hearing held on August 29, 2012. The Board reserved its decision at that time. The Board finds in part in favour of the Applicant for the first issue and in favour of the Society for the second issue. The reasons for this decision follow.

BACKGROUND

6The Applicant is the mother of [ ] (the “Child”), who is three years old. The child’s father is [ ] (the “Father”). The Applicant and the Father separated in November, 2011. An interim Court Order gave each parent joint custody of the Child. The Society opened a child protection file to ensure the well-being of the Child and to ensure each parent had adequate parenting skills when the Child was in his or her personal care.

7On February [ ], 2012 the Society contacted the Applicant to inform her that it was comfortable with the individual parenting skills and intended to close the file that day. On February [ ], 2012 the Applicant observed severe rug burns on the Child. She reported the observation to the Society. Following an investigation the Society determined that there were still parenting concerns and re-opened the child protection file.

8On March [ ], 2012 [the Judge] ordered the Society to provide the Court with a detailed letter or affidavit to outline its (the Society’s) history of involvement with the family with specific reference to the alleged child abuse perpetrated by the Father on or about February [ ], 2012. The Society complied and sent a letter dated March [ ], 2012 to the Court. A copy of the letter was hand-delivered to the Applicant on March [ ], 2012 by [ ], the Family Service Worker (the “Service Worker”) assigned to the file.

9On March [ ], 2012, [ ] (the “Agent”) delivered a letter to the Society on behalf of the Applicant in which he declared that he was now acting as the Applicant’s agent and that all communication from the Society regarding the Applicant was to go directly to him, not the Applicant.

10In late April, 2012 the Applicant learned that the Father had uttered words that she interpreted as a direct threat on her life. The Father had allegedly said the words at a February meeting of [a support group] in [city]. On April [ ], 2012 when the Child was in her care, the Applicant took the Child and placed him in a safe location in Ontario. Through the Agent, the Applicant notified the [city] Police Services [ ] and the Society of both the apprehension and her reasons for taking that action.

11A few days later in April, the Father was able to have the Child legally returned to him. As well, a “no access” order was placed on the Applicant. The Applicant was in court on May [ ], 2012 as part of her ongoing custody proceedings. [The Judge], having read the reports of the apprehension incident, gave sole custody of the Child to the Father and permitted supervised access visits for the Child with Applicant for three (3) hours every other week.

12Throughout April and May, 2012 the Applicant, through the Agent, wrote numerous letters to the Society, many of which were incomprehensible, asking and/or demanding that it provide numerous reports to her, carry out a number of other activities on her behalf and conduct a series of investigations regarding the Child’s safety and well-being. She applied to the Board in mid-June, 2012 alleging that the Society was not responding to her requests and demands.

ANALYSIS

13The Board must determine whether the Society has failed to hear the Applicant’s service concerns or heard her when decisions were made and whether it failed to provide her with reasons for decisions that affected her interests regarding two matters:

1. the Society’s letter to the Court sent on or about March [ ], 2012, and

2. the Society’s failure to provide the Court, police or Applicant with relevant information concerning the safety and well-being of the Applicant and her child.

14The applicable legislation states as follows:

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.

Section 2 (2) (a):

Service providers shall ensure 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.

15Before assessing the merits of each complaint the Board must note that communication difficulties plagued the process between the Applicant and the Society. The Agent demanded that all communication to the Applicant pass through him, yet it is very unclear how much information he actually forwarded to the Applicant. Her testimony indicated that some of the information in the numerous documents the Agent filed with the Society was not shared with her. The Agent filed complaints of his own against the Society. The Society had difficulty determining which, among the many letters he addressed to it were on his behalf or were on behalf of the Applicant.

Issue #1: Society’s Letter to the Court

16The Applicant received the court-ordered letter from the Society on March [ ], 2012. She believed that the letter painted a very positive picture of the Father while portraying her and her family in a very negative way. [ ] (the “Supervisor”) testified that the Service Worker made several telephone calls to the Applicant to setup a meeting in late March to discuss parenting matters for joint custody. As the calls were not returned he wrote a letter to the Applicant, dated March [ ], 2012 to invite her to a meeting. The Applicant did not offer any evidence that she responded to the invitation of the Society to meet and discuss the issue.

17However, through the Agent, she replied by letter to the Society on or about April [ ], 2012. Her concerns with the contents of the Society’s letter are summarized below. Items #1- #4 were expressed in the letter of April [ ], 2012. The remainder were provided during the Applicant’s testimony at the hearing.

1. She sought clarification about the meaning of a comment that stated “the agency verified that the father’s care-giving skills created risk of harm to the Child”,

2. She wanted an explanation for the conclusion that the Child was at risk of emotional harm due to his exposure to the parents’ and extended family members’ conflict regarding custody,

3. She sought medical or third party proof that the Child was at risk of emotional harm,

4. She wanted to know why a comment made to her via telephone by Supervisor [ ] regarding the Father’s inadequate parenting skills was omitted from the letter,

5. She wanted to know how the Society confirmed that the Father was progressing in his anger management counselling,

6. She wanted to know how the Society determined that the rug burns on the Child was not consistent with physical aggression or punishment, but merely an act of neglectful parenting,

7. She wanted to know how a Society employee could conclude from only one visit to her home that the child was more settled in his father’s care.

18The focus of her complaint to the Society was outlined in the Applicant’s letter of April [ ], 2012. The Society cannot be expected to respond to matters raised in September at the oral hearing. The Board will only consider the four matters that were raised within the letter of April [ ], 2012.

19This request of April [ ], 2012 was left unanswered until May [ ], 2012 when the Society wrote to the Applicant a substantive response. This letter of May [ ], 2012 followed in fact a few attempts by the Applicant’s “agent” to get information and documents. The Boards finds that these attempts were done with a tone not conducive to communication. However, the Society has the professional expertise to deal with these situations and could have responded in [a] timelier manner. The second communication from the Applicant to the Society came in the form of a package of information and requests (the “package”) sent by the Agent to the Society on April [ ], 2012. This was followed by two visits of the Agent and the Applicant to the Society regarding the content of the package on May [ ], 2012. Also, another request from the Agent was made on May [ ], 2012, requesting, among many other items a mental health assessment of the Child.

20The Applicant testified that after May [ ], 2012 she made no further attempts to contact the Society to seek answers to her concerns. She further indicated that she had received no reply from the Society that addressed any of her concerns which is incorrect considering the letter of May [ ], 2012. She testified that when she met with the Supervisor at the Society offices twice on May [ ], 2012, the Agent accompanied her and insisted that she (the Applicant) remain silent. The Agent did not take the opportunity to raise the concerns he had raised in his correspondence of April [ ], 2012 during either of these meetings.

21The Supervisor testified that in early May, 2012 she was concerned about the lack of communication between the Applicant and the Society and wrote a detailed letter to the Applicant to outline the Society’s position with respect to many issues that the Applicant had raised in April. The six-page letter, dated May [ ], 2012 contained detailed information regarding the Society’s actions and decisions on several topics, including:

1. its difficulty in working towards goals because of the presence of the Agent,

2. custody and access and the stress created for the Child by the Agent’s presence,

3. the overall communication difficulties,

4. its investigations and results surrounding the parenting skills and the risks of physical harm to the Child while he was residing with the Father,

5. verifying their concerns about risks of emotional harm to the Child resulting from adult conflicts surrounding the ongoing custody matters,

6. a clarification about the postponement of a scheduled internal complaint review,

7. an explanation for lack of full file disclosure,

8. clarification of the Society response to new evidence concerning apparent risk to the Child while in the Father’s care,

9. an explanation regarding the alleged failure of the Society to report incidents to the [city] Police Services [ ],

10. an explanation why the Society has not proceeded with a complete mental health examination of the child, and

11. an explanation why the Society would not proceed with hair follicle drug testing of the Father.

22The parties were also involved at the same time with another complaint that was heard by the Board. The Supervisor testified that, on June [ ], 2012 at one of the hearing days scheduled before the Board, she realized that there had been “a gap in the communication” and she spoke with the Applicant that day. She told the Applicant that she would like to meet with her. The Applicant did not answer, a letter was sent and the meeting of June [ ], 2012 was scheduled.

23The Supervisor testified that at the meeting on June [ ], 2012 they reviewed the Applicant’s concerns about the Father’s parenting skills, how the Child interacts with her, the threat of violence and the alleged use of drugs by the Father. As the Applicant was expressing her concern that the letter of March [ ], 2012 was presenting her as a bad parent, the Society offered to prepare a new letter for her. The initial draft of this letter was reviewed by the Applicant at a meeting with the Supervisor on June [ ], 2012. The letter was re-drafted by the Supervisor following input from the Applicant. This letter, which the Applicant can use in her court proceedings regarding custody of the Child, portrays the Applicant in a very positive manner and provides a detailed plan for her parenting roles when she has access with the Child.

24The Board finds that communication between the Society and the Applicant was very difficult and “muddy” because of the involvement of the Applicant’s “Agent”. After the April [ ], 2012 letter from the Agent to the Society, limited efforts were made to reach out to the Applicant to respond to her service concerns as the Agent was perceived as a barrier in their communication. There was an initial one-way communication via its letter of May [ ], 2012. However, the real communication, including dialogue between the Applicant and the Society only started on June [ ], 2012, when the Applicant met with the Society on her own. The Society could have been more diligent. Fortunately, the Supervisor reached out to the Applicant on June [ ], 2012.

25The Supervisor also recognized that the Society did not share with the Applicant clearly enough the fact that it contacted the police to discuss the concerns she had raised in the April [ ], 2012 “package” sent to the Society to advise that the Applicant was apprehending her Child. The “package” also raised the concerns about the Father’s words and action at [the support group] therapy meetings in January and February, 2012. Also, the fact that the Society addressed the issues with the Father about those incidents was not shared with the Applicant. These were some efforts made by the Society to follow-up on the Applicant’s concerns. However, the Applicant was not informed about those efforts and the lack of information was just exacerbating her anxiety.

26The Board finds that the Society could have made more effort to communicate with the Applicant even in the context of having an “Agent” who was limited in his capacity to help the Applicant. The Society is equipped to deal with this type of situation. The Society’s attempts in June 2012 to clarify their position regarding the parental capacity of the Applicant was certainly a step in the right direction to improve the communication and to ensure that the Applicant’s concerns were heard and that explanations were given.

27The 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 accept decisions. The Society failed to comply with its obligations under the Act as it did not have genuine communication with the Applicant about her concerns between April [ ], 2012 and mid-June, 2012, a time period during which the Agent interfered with the opening of any direct communication channels. The May [ ], 2012 letter was an attempt to explain the Society’s position but did not engage the Applicant in a discussion for her to understand fully its actions.

28However, the Board finds that once genuine communications began at the June [ ], 2012 meeting the Applicant was being “heard” and was receiving reasons, albeit late, for Society’s decision and actions regarding the first issue raised in this application. The information the Applicant received at the hearing through case notes helped the Applicant to understand the Society’s decisions and actions but cannot be considered by the Board as part of the effort made by the Society to hear her concerns.

Issue #2: Society’s failure to forward documents and concerns to the Court, the police and the Applicant

29The Applicant alleged that the Society did not forward to the Court several documents and concerns that may have assisted her in her custody dispute with the Father. She also alleged that the Society failed to provide the [city] Police Services [ ] with those documents. Furthermore, she alleged that the Society had received information concerning the well-being of the Child from other sources and did not share that information with her.

30The documents referred to in the first section of this complaint are letters written by three persons who attended [support group] meetings in [city] in January and February of 2012 which were attached to the “package” referred to above in paragraph [19]. Two of the letters describe gestures and comments made by the Father that were interpreted by the Applicant as direct threats on her life. The third letter describes some blatant sexual gesturing done by the Father in front of children at one of those [support group] meetings.

31The Applicant learned about the alleged threat in mid-April, 2012. Following what she interpreted as correct procedures as given to her by [ ] [Constable] of the [Police Service] she took (apprehended) the Child during an access visit on April [ ], 2012. The Applicant contacted the witnesses and asked them to prepare letters to substantiate her actions of April [ ], 2012. On or about April [ ], 2012 the Applicant reported the threat to the [Police Service]. The Applicant, the Agent and two of the witnesses went to the Society offices on May [ ], 2012 to discuss the content of the letters. They also went to the [Police Service] to present the same information to the police.

32The first portion of the Applicant’s complaint in this regard is that the Society failed to forward these documents to the Court. She believed the letters would perhaps have prevented the Court from removing her as a joint-custodial parent. And she believed the Society was obligated to do so in keeping with the Court Order of March [ ], 2012. She complained about the Society’s failure to provide the letters to the Court directly with the Society as a service concern that required a response from the Society in her letter prepared by the Agent on May [ ], 2012.

33The Supervisor provided the Board with a copy of that Court Order. Clearly, it was a one-time request from the Court for background information regarding the Applicant, the Child and the Father. The Society was under no obligation to continue to forward documents to the Court. Nor was it under any obligation to provide documents to the [Police Service]. The Applicant and/or the Agent mis-interpreted the intent of the Court Order.

34Furthermore, the Applicant testified that, prior to her letter of May [ ], 2012 she herself had forwarded the letters to the Court as part of a submission to the Court on or about April [ ], 2012. The May [ ], 2012 letter was written by the Agent who may not have known that the letters from the “package” had already been filed with the Court. She also testified that [the Judge] had read the letters as the judge told the Applicant that the letters were dismissed as being “hearsay evidence”.

35The Board finds that this portion of the second issue is without merit. The Society was not obligated to forward the letters to the Court. There can be no fault placed on the Society for the Applicant and her Agent’s failure to both understand the stipulations included in the Court Order or for failing to communicate with each other. The Board dismisses this portion of her complaint.

36In regards to the second portion of the complaint that deals with the [Police Service], the Supervisor testified that on May [ ], 2012, the Agent informed her that copies of the letters would be taken directly to the [Police Service] so they would have full knowledge of the behaviours and comments alleged to have been done by the Father at the [support group] meetings. The Supervisor indicated that she believed the police would be aware of the events and did not forward the letters herself. She further testified that she did discuss the letters with the [Police Service] but they did not feel it necessary to conduct an investigation into the allegations. Furthermore, the Supervisor also stated that she believed the alleged comments were made in a therapeutic setting and were not intended as a threat to the Applicant’s life.

37The Board finds that the Applicant’s complaint on this specific issue is without merit. The Society did not fail to hear her concerns by not forwarding the letters to the police as it was not required to do so by the Court Order. The Applicant’s letter to the Society, sent by the Agent on May [ ], 2012, does not specifically request that the letters be forwarded but demands that full disclosure be made to the [Police Service].

38The Applicant testified that at the meeting of May [ ], 2012 at the Society office she also asked what the Society would do about the content of the letters. The actions that the Society could have taken regarding these letters were to proceed to an investigation to assess if the Child was at risk. The Society informed the Applicant via letter on May [ ], 2012 that it would not proceed to investigate and gave her reasons for that decision. The Applicant disagreed with the decision and the reasons given.

39The Society could have done more in May 2012 to explain why it was not conducting an investigation. The Supervisor could have told her that it had discussed the matter internally and had contacted the [Police Service] and determined there was no need to conduct a joint investigation with the [Police Service]. As it did at the oral hearing, the Society could have explained to the Applicant in May 2012 that it had in fact contacted the police to verify the circumstances of the allegations and to discuss the letters. This failure of the Society to give timely reasons for its decisions has been addressed in the issue # 1 analysis above.

40The Board concludes in favour of the Society on the whole issue of forwarding documents to the Court and the [Police Service]. However, the Board finds that the Society, once it knew of her concerns regarding the failure to forward documents failed to clearly communicate to the Applicant its reasons for its actions in a timely manner. The Society should have explained to her that it had no obligation to forward the documents. By doing so, it would have addressed the Applicant’s concerns and would have provided an explanation for its decision. It was at the oral hearing that the Society understood that this misinterpretation of the Court Order was at the heart of the matter. Once the Court Order was reviewed at the oral hearing both the Applicant and the Society understood the misunderstanding.

41The final segment of this complaint refers to the Society failing to forward information to the Applicant stems from a report filed by the Agent with the Society in March, 2012. The Agent informed the Society that he had witnessed alleged actions by the Father that could be interpreted as potentially harmful for the Child. In the report the Agent states that he requested full confidentiality and anonymity protection from the Society. After assessing the implications of the Agent’s report and bearing in mind the Agent’s confidentiality request the Society did not inform the Applicant of the concerns raised in that report.

42The Agent also told the Applicant that he had filed with the Society a report concerning the Child’s well-being. He did not clarify with her what the report was about. The Applicant, however, was aware of the incident the Agent had reported to the Society. His failure to tell her what he had submitted made it difficult for her to connect the two reported incidents as being one and the same. Without that connection she concluded that the Society was withholding information from her.

43This report regarding alleged behaviour by the Father that might put the Child at risk was made by the Applicant’s “Agent”. The Society was under the impression, and rightly so, that the Applicant was aware of the allegations as it was her “Agent” who made them. The particulars surrounding the report from the Agent were clarified at the oral hearing. The Society cannot be faulted for the communication breakdown between the Applicant and her Agent on this matter.

CONCLUSION

44The Board concludes regarding the first issue raised in this application, which is the Society’s letter sent to the Court, that the Society failed to hear the Applicant’s concerns and to hear her while decisions were made and to give explanations during the period from April [ ], to June [ ], 2012. Following that period the communication started and the Society fulfilled its obligation.

45The Board concludes regarding the second issue raised in this application, which is the Society’s failure to provide information to the Court and the police, that the Applicant’s complaint is without merits as the Society had no obligation to forward the information. The Board concludes however that the Society should have informed the Applicant in a timely manner that it did not have that obligation.

CONFIDENTIALITY ORDER

46Parties 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.