J.J. v. Children’s Aid Society of Durham, 2014 CFSRB 14

CHILD AND FAMILY SERVICES REVIEW BOARD

J.J.

v.

Children’s Aid Society of Durham

REASONS FOR DECISION

Date: March 20, 2014 Citation: 2014 CFSRB 14 Indexed as: J.J. v. Children’s Aid Society of Durham (CFSA s. 68)

INTRODUCTION

1The Applicant J. J. filed this Application on October 16, 2013, pursuant to subsection 68.1(4) 4 and 5 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (the “Act”).

2The Applicant alleges that the Children’s Aid Society of Durham (the “Society”) failed to provide her with an opportunity to be heard about her service concerns and failed to give her reasons for its decisions affecting her interests in the following matters:

1The safety and well-being of her children while in the care of their father;

2The failure of the Society to recognize that the Applicant’s children have not been forthcoming with the Society because of fear of their father;

3The failure of the Society to follow-up on investigations related to the safety of her children and to keep the Applicant informed of the process; and

4The conduct of the worker currently assigned to the Applicant’s children’s file.

3For the reasons which follow the Application is allowed.

JURISDICTION

4The Society challenged the jurisdiction of the Child and Family Services Review Board (the “Board” or “CFSRB”) to deal with this Application on the following grounds:

(a) That the current matters are within the purview of the court, and therefore barred pursuant to s. 68.1(8) of the Act;

(b) That the core of the current complaint is the dispute between the parents as to who should be the children’s guardian and where the children should call home, and that this matter is before the court, and that the protection issues are a “proxy” for the Applicant to get the Board to review the case.

5The Applicant submitted that the core issue of her complaint is the actions of the Society, and not the issue of custody or access. She added that the matter currently before the family court is with regards to the issues of child custody and access, as well as child support arrears and re-assessment. In support of her position, the Applicant submitted a Case Conference Notice issued on September 9, 2013 for a Case Conference to be held on December 17, 2013. The Children have the Office of the Children’s Lawyer (OCL) representing their interests in these proceedings.

6Neither the Applicant nor the Society acted upon the Board’s request for more documentation on this court process. However, on the face of it, the Case Conference Notice mentions the issues as stated by the Applicant.

7Section 68.1(8) of the Act reads as follows:

The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court; or

(b) is subject to another decision-making process under this Act or the Labour Relations Act, 1995. 2006,c. 5, s. 26.

8In the present case, the Board holds that it has jurisdiction to hear the matters raised in the Applicant’s complaints, pursuant to Section 68.1(4) 4 and 5 of the Act, and proceeded to hear evidence related to this complaint.

9The rationale for the Board’s determination that it does have jurisdiction to hear this complaint lies in the distinction between the core of what the court decides, and the manner in which a Society deals with a recipient of service even if the court is involved. This distinction is clearly articulated in the decision of the Court of Appeal for Ontario, in the case of D.D. (Children’s Aid Society of Waterloo v. D.D., 2011 ONCA 441). The Court of Appeal for Ontario confirmed the Board’s interpretation of its jurisdiction in cases where the court may also be involved.

10The issue raised in the appeal in the D.D. case is stated at paragraph 5 of that decision as follows:

“This appeal concerns the ability of parents to access the administrative complaints processes before children’s aid societies (“societies”) and the Board under sections 68 and 68.1 of the Child and Family Services Act (the “CFSA”) in relation to their service-related complaints, when child protection proceedings have been commenced before the court. In particular, it involves the interpretation of subsection 68.1(8) of the CFSA and the standard of review to be applied to the Board’s decision under that provision.”

11In confirming the CFSRB’s jurisdiction in D.D., the Court of Appeal commented as follows at paragraphs 42 and 46:

“The Court and the CFSRB are concerned with different issues. The court, of course, is engaged in a determination of the best interests of D.D.’s children in terms of where they should live in the long term. The CFSRB, in this instance, is concerned with whether the CAS is carrying out its statutory mandate in terms of its dealings with D.D. in the short term, while matters are pending before the court.

In my view, the CFSRB’s decision to accept jurisdiction was correct and in accordance with its statutory mandate.”

12Moreover, in this case, no child protection proceeding has been initiated by the Society; the Applicant and her former husband are before the Family court to address matters of custody and access as well as child support. Concurrently to this process, but unrelated to it, the Applicant, her former husband and their children have been receiving services from the Society. It is the delivery of those services that are the subject of the present Application.

13As a result, the Board found it had jurisdiction to hear the present Application.

BACKGROUND

14The Applicant has been living apart from her from her former husband for almost 10 years. The last year has seen increasing conflict over the care and safety of the children; in contrast, the prior five years of separation were much less conflicted.

15There are two children involved in this situation: the Child “C”, age 13 years and the Child “K”, age 11 years. Until recently, both children lived with their father for some 9 years. The Child C has also lived with his mother at various times over the last 6 months or so.

16There is an informal joint custody arrangement between the parents; there is no formal voluntary agreement or court order on the issue of custody and access. For many years, this seemed to work for the Applicant; lately it has been causing more and more conflict with her former husband. Currently, court proceedings have started to get a court order over custody and access.

17The Society has been involved with the family for the last 6 years, with the current opening starting in May 2013. The current opening started as a result of a report relating to the father and his other children with a subsequent partner; however, the Society decided to open the family to ongoing services as a result of its investigation of the other report.

ANALYSIS

18The main issues for the Board are whether the Society heard the Applicant as required when decisions were made or when she raised service concerns, and whether the Society provided her with explanations relating to the decisions made that affect her interests. The Applicant needs to have sufficient information to understand in a timely way what decision was made and the reasons for such decisions. 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:

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

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

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.

6. Such other matters as may be prescribed. 2006, c. 5, s. 26.

Review by Board

(5) Upon receipt of a complaint under this section, the Board shall conduct a review of the matter. 2006, c. 5, s. 26.

Application

(6) Subsections 68 (7), (8) and (9) apply with necessary modification to a review of a complaint made under this section. 2006, c. 5, s. 26.

Board decision

(7) After reviewing the complaint, the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint; or

(f) make such other order as may be prescribed. 2006, c. 5, s. 26.

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;

19The Board heard evidence from three witnesses: the Society Worker, the children’s aunt, and the Applicant herself, over two days of hearings.

20The Applicant’s complaint focussed on four issues as identified in paragraph 2 above. Because of significant overlap between issues 1 and 3, they will be addressed together.

1. The safety and well-being of her children while in the care of their father.

2. The failure of the Society to follow-up on investigations related to the safety of her children and to keep the Applicant informed of the process.

21There was a new intake process occurring in May 2013, with the intake worker doing an assessment of the family situation as it presented at that time. An investigation was done, the children and parents were seen, and a decision was made to keep the file open for ongoing services. The file was transferred from the intake worker to the Family Services Department.

22The current Family Services Worker (the “Worker”) received the file in May 2013 (no exact date given), and saw the father and the child K on June 25, 2013. The worker did not see the Applicant or the child C then because he was living with the Applicant at the time.

23The first contact between the Worker and the Applicant occurred on June 27, 2013, during a meeting held at the school. The school had requested the meeting, due to concerns over the child C’s behaviour. Attending at the school meeting were the principal, the school social worker, both parents, the Worker, and another school person taking notes. During the school meeting, the Applicant wanted to engage the Worker in a discussion about her concerns, and how these concerns had not been heard or acted upon by the Society. The Worker did not respond, saying the school meeting was not the appropriate time or place to discuss the Applicant’s concerns.

24There was a brief conversation between the Worker and the Applicant after the school meeting to discuss summer camp for the Child C. As well, the Worker made a comment about how parental conflict leads to children getting upset. The Applicant testified that the Worker stated the children’s problem behaviours were caused by the parental conflict. The Applicant testified she was very concerned and upset that the Worker “diagnosed” her children without knowing them, without having a good understanding of the family situation and, mostly, without the expertise to do so. In her testimony, the Worker denied having made such comments but stated she may have said it appeared there was conflict in the family because of custody and access issues and these were upsetting for children. However, the Applicant testified that as of June, there were no custody and access issues yet before the court and this was not initiated by the Applicant until September as evidenced by the Notice of Case Conference admitted as evidence by the Board.

25On July 8, there was a telephone conversation between the Worker and the Applicant. The Applicant referred back to, and indicated she was upset at the Worker’s comment after the school meeting to the effect that the difficulties the children were experiencing were caused by the parental conflict over the issue of custody and access. The Applicant was especially upset that these comments were made when the Worker acknowledged that she was very new to the case. The Applicant was upset about this comment, and various other aspects of the Society’s involvement, and was raising her voice at the Worker. The Applicant admitted that the Worker cautioned her about her continuing shouting and the “tone” of her comments, and indicated that she would end the phone conversation if the Applicant did not change the tone and the level of her comments. The Applicant did not change, and the Worker ended the telephone call. There was no follow-up from the Worker, such as a letter or a phone call a day or two later, to continue the discussion which was terminated on July 8.

26The Applicant testified she was confused with regards to the status of the Society file on her. A letter from the Society dated July 2, 2013, signed by the Intake Worker [ ], reported that the child protection investigation regarding the Applicant’s family

“. . . is now complete and your file with the Society will close.” The Applicant had not been given reasons by the current Worker why the decision communicated in the letter was not carried out, and why the file now still remained open. The Worker could not answer the Board’s questions to establish the exact sequence of decisions internally at the Society, as to who decided to close the case, and how the current Worker remained involved with the Applicant as an open case.

27Another aspect of the July 2, 2013 letter was also puzzling to the Applicant. If it is Society practice to notify a person when an investigation is finished, why did the Applicant not receive similar letters from the Worker when she made a number of allegations against her former husband’s care of the Children. The Worker assured the Applicant and the Board that each allegation that the Applicant made is looked into, and resolved one way or another. Yet no letters of acknowledgement or disposition from the Worker were received by the Applicant after allegations made by her and no such letters were produced to the Board by the Society.

28The Applicant testified that she made a number of reports to the Society, alleging maltreatment of her children at the hands of their father. The Applicant did not specifically recall each date that such a report was made to the Society. The Worker responded that each and every complaint was followed up on. However, there was no indication given that any questions were raised by the Worker regarding any of the Applicant’s reports, nor that there was any feedback whatsoever was given back to the Applicant, about the content or outcome of the investigation that would have followed such complaints.

29The last instance where the Application brought up a concern to the Society regarding the father’s care of the children took place in September 2013. The Applicant and her sister both testified about an incident where each felt the safety of the Child C was greatly compromised through the actions of the child’s father. The Applicant’s sister was at the Applicant’s house, because she had an apprehension that an altercation may occur when the Child C came back to his mother’s house. The Applicant relates that, on September 2, 2013, around dinner time there was an incident where the father intentionally pushed the Child C into a brick wall. The Child C had been living with his mother since April or May of 2013. This incident allegedly occurred when the Child C had gone to his mother’s house following an access visit with his father to retrieve some clothing and personal items which he wanted to take with him as he was in the process of moving back to live with his father. The testimony of the Applicant indicated that it seemed the father did not want the child to enter his mother’s home, for fear that she would not let the child go back outside so he could go back with the father. At that point, the versions of events as told by the Applicant and as told by the Society diverge markedly. The Applicant relates that she saw her son’s father leap over a low fence, and tackle and push the boy against a stone wall some eight feet away. The Society believes the father’s story that he tripped and he and his son did connect with the stone wall, but that this was accidental and the son was not injured.

30On September 6, 2013 the Applicant went to the Society office, accompanied by her sister who witnessed the incident. The Applicant did not have an appointment, and she and her sister showed up at the office unannounced, demanding to meet with the most senior staff member available. The Worker returned to the office, and she was accompanied by her supervisor when they met with the Applicant’s and her sister. The Applicant in her testimony used the phrase that she was “not heard” when she tried to highlight what she saw as the danger to her son’s well-being in situations like this.

31The Applicant testified that at the end of the meeting, the supervisor advised her that, when she had documented evidence, she could bring it in to the Society, and the Society would decide what if any follow-up action would be taken. The Applicant expressed strong frustration about not being heard, that her versions of events seemed to be trivially dismissed, and that the Society preferred to believe the version described in the police report, written by an officer who did not witness the incident first-hand. The Applicant felt she was not heard, and that she was not given reasons as to why the Society believed the more benign version of the incident.

32Testimony from the Applicant and from the children’s aunt focussed on their concerns about the safety of the children, especially of the Child C, when they were in the care of the father. The Applicant in the application indicated that the boys “have told me countless episodes of physical and emotional abuse”.

33Shortly after the September 6 meeting at the school, the Applicant had a brief contact with the Worker, where she made another report about her concerns about her sons’ safety. The Applicant related that the Worker took no notes when the situation was described. As well, she feared that there would be no follow-up to that report. The Applicant indicated to the Board that indeed she was not contacted again about this allegation.

34The Applicant also testified about another occurrence where the Child C told her about a conversation he had with the Worker, telling her that he wanted to live with his mother rather than with his father. The Applicant testified that her son reported to her that the Worker replied to him “. . . that’s not in your best interests.” When the Applicant complained to the worker about this intervention, she never was contacted and she does not believe it was ever followed up.

35On a number of occasions, the Applicant referred to the children being in danger, both in terms of their living in the home of the father, and also in terms of their stress levels and their mental health. At the September 9meeting at the office, the Applicant again re-iterated that she is “seriously concerned about the children’s safety”. She also mentioned that the Child C had on two occasions threatened suicide.

36On September 20, the Worker called the Applicant. The Applicant testified that in the brief telephone conversation the Worker made three statements to the Applicant: “The children C and K are not in any danger”, “the Child K is not suicidal”, and “the Child K wants to stay at his father’s home”. The Applicant testified that the Worker “gave me no other information”.

37The Board finds these statements all the more puzzling, since her testimony included the comments that on September 6, when the Applicant and her sister came to the office without an appointment, the Worker told the Applicant that the Worker believed that both children needed counselling and that the Child K had been referred to [mental health centre 1] and the Child C had been referred to [mental health centre 2]. Both of these settings are provincially-funded Children’s Mental Health Centres, with services geared to seriously disturbed children and youth.

The failure of the Society to recognize that the Applicant’s children have not been forthcoming with the Society because of fear of their father.

38The Applicant testified that at the September 9, 2013 meeting, the Applicant again told the Worker that her children are “terrified of their father”. She told the Worker that the children will not talk about their fears in front of their father, and that they will “freeze” when their father even stares at them. She told the Worker “I know my children, I listen to them”. Many times the children have told their mother that their father hurt them.

39The Applicant also testified that in the spring she had told the Intake worker of an incident where one child had been very scared of his father and had wet his pants. The father then dragged the child up the stairs, to his room. The Applicant was not present for this incident, but was told by the Child C. what had happened, and that the Child C. had also told the Intake worker about this incident. The Applicant related that, after that incident, the school principal called the Society to express concern about the children being abused in the father’s home.

40The examination and cross-examination on this issue were hampered by the fact that the Society did not have the case file at the hearing, so it was not possible to see what case notes had been made at the time. The Applicant testified that she believes that the Society did not follow-up with any investigation of this complaint.

41The Board did not hear any evidence from the Society worker that would lead to a finding that this complaint was heard and that follow up occurred.

The conduct of the Worker currently assigned to the Applicant’s children’s file.

42The Applicant complains about a number of aspects of the conduct of the Worker, in terms of attitude, communication levels, and a number of instrumental tasks.

43The Applicant in her testimony outlined as an example how the issue of the Child C and his camp registration was mishandled. The Society arranged for a camping experience in the summer of 2013 for the Child C. Such an application is often accompanied by difficulties in scheduling and availability of camp spots. The Applicant indicated that she learned her son had been accepted at camp 3 hours after he was to have arrived at camp. The Applicant learned that her son should have been at camp that morning through a letter that indicated his acceptance and expected time of arrival. The Applicant wanted to know from the Worker why no one had told her about the camp acceptance and arrival date. The Worker testified that those arrangements were made by the camp, and were communicated directly to the Applicant by the camp. The Applicant enquired why the letter from the camp arrived in one of the Society’s envelopes with the Society’s return address, and post-marked 2013.08.09. Camp started on August 12. The Worker could not come up with an explanation as to what the Society’s role was in the written notification to the Applicant about the confirmation of the date and time of the Child C’s camping arrangement, nor could she explain why the letter came in a Society envelope. The Applicant used this illustration to show that the Worker did not seem to care or be concerned about how this situation had developed.

44The Applicant stated that the Worker did not communicate with the Applicant in a straightforward way. There were very few contacts initiated by the Worker; the Applicant testified that she made numerous calls to the Worker, and stopped doing so when she realized the Worker was not responding to her. Many situations happened during that second half of 2013, but the scarcity of contact from the Worker resulted in the Applicant not knowing whether the Society Worker was hearing her views on significant issues, and not getting reasons for what the Society was doing. The Board finds that the onus remains on the Society and its Worker to maintain contact, by the most appropriate method, to keep her involved in decisions-making around her children.

45The communication between the Applicant and the Worker was infrequent at best, especially after mid-September. The Worker appears to have left the onus on the Applicant to call her. In her testimony, the Worker said: “[The Applicant] has made calls to me - not many calls to me - I have responded”. In view of the number of reports the Applicant has made, and in view of her continuing belief that her children were at risk with their father, and in view of her constant concern that the children would hesitate to speak openly about any negative aspect of the care they received from their father, all of these would have led one to expect that there would have been significantly more contact between Worker and Applicant, and that the Worker would have initiated most of these calls. This however is not how the relationship evolved between Worker and Applicant.

46At another time, when the Applicant had gotten in touch with the Worker around 6 p.m., the Applicant felt rebuffed by the Worker, with the comment that she was calling “outside of workers’ hours”. The Society Worker’s testimony clearly highlighted the fact that she considered the children’s father to be “her client” because that was where the children had their primary residence. The Worker seemed to imply that this in turn explained why she did not engage very much with the Applicant. The Board finds that position not in accordance with the Society’s obligations under the Act: the right to be heard and to receive reasons is not reserved to parents who have legal or de facto custody of their children.

THE RIGHT TO BE HEARD AND TO BE GIVEN REASONS

47To be heard means that a person has a chance to tell her side of the story, in a respectful context where the Society listens with an open mind. The right to be heard exists for parents and children to permit them meaningful participation in the process, to ensure that their perspective will be considered and taken into consideration when determining next steps. It is to give them an opportunity to have some degree of influence on decisions that affect their interest. This can only be achieved through a genuine communication. For a parent who does not have daily care and control of their child, this opportunity to participate and be heard in decision making by the Society takes on an even bigger importance as the “access parent” will rely on the Society Worker to be their eyes and ears in the daily life of the children.

48The right to be given reasons in the Act helps to ensure that Applicants are informed about the decisions made by the Society that will impact on their lives. Often these decisions lead to impacts that are serious or at least, cumulatively serious and they always involve the best interests of children. By being informed serves two purposes: it permits the Applicant to understand what is happening and why, and it permits the Applicant to be an active participant with some degree of influence on outcomes and processes.

CONCLUSION

49The Board allows the Applicant’s complaints that the Society failed to provide her with an opportunity to be heard about her service concerns and failed to give her reasons for its decisions affecting her interests in her complaint about four areas of concern.

50Specifically, regarding complaints 1 and 3, the safety and well-being of her children while in the care of their father and the failure of the Society to follow-up on investigations related to the safety of her children and to keep her informed of the process:

1. The Board orders the Society to provide to the Applicant a list of the dates in the 12 months preceding this Application where reports were made by the Applicant on this issue, what action was taken by the Society to investigate, what conclusions were reached by the Society, and how this was communicated back to the Applicant.

2. The Board orders the Society to provide to the Applicant its reasons why it concluded that the September 2 issue did not constitute a risk of harm to the Child C.

3. The Board orders the Society to provide reasons why, regarding the July 8 telephone conversation that was terminated by the Worker, the Society did not contact the Applicant, by telephone a few days later, or by another means, to continue the discussion that had started on the telephone on July 8.

4. The Board orders the Society to provide reasons behind the rationale expressed in the July 2 letter to the Applicant informing that the case was being closed, and the assignment of the current Worker shortly after that letter.

5. The Board orders the Society, with regard to the Worker’s statements made during the September 20 telephone contact with the Applicant, to provide reasons behind the Worker’s conclusive statements that the children C and K are not in any danger and that the Child K is not suicidal. In particular, what evidence did the Society gather, from its own staff and/or from outside professionals, to enable it to make the definitive statement that the children were not in danger, and specifically that one particular Child is not suicidal.

51Specifically, regarding complaint 2, the failure of the Society to recognize that the Applicant’s children have not been forthcoming with the Society because of fear of their father:

1. The Board orders the Society to provide its reasons for its firm conclusion that the children have been fully forthcoming with the Society and that they have no fear of their father. Specifically, how many times were the boys seen alone or together in the presence of the father, how many times alone or together outside of the father’s home and his presence, and any communications by the Worker with collaterals professionals, such as their counsellors, the school social worker or teachers, who would have explored this area of concern with the children.

52Specifically, regarding complaint 4, the conduct of the worker currently assigned to the Applicant’s children’s file:

1. The Board orders the Society to provide a list of contacts, initiated by the Worker from the date she received the case to the date of this Application, to obtain input from the Applicant about the issues facing her children, to hear her perspective, and to keep her apprised of actions taken by the Society and the reasons for those actions.

2. The Board orders the Society to provide a thorough explanation of the process of notification to the Applicant about her son’s acceptance into the camp program, the role of the Society in communicating this acceptance to the Applicant, and an explanation on the use of a Society envelope to mail the acceptance notice to the Applicant, and an explanation why the Applicant was not notified by telephone rather than by the letter which arrived late at the Applicant’s residence.

53The Board orders the Society to provide a written response or comments to the above issues, and to supply this response to the Applicant within 20 working days from the receipt of this order, and to supply a copy of this response to the Board at the same time as it is supplied to the Applicant.

54The Board will remain seized of this case for 40 days to ensure compliance with this order.

CONFIDENTIALITY ORDER

55Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purposes outside of the Board’s proceedings.