R.N. v. Dufferin Child and Family Services, 2014 CFSRB 38

CHILD AND FAMILY SERVICES REVIEW BOARD

R.N.

v.

Dufferin Child and Family Services

REASONS FOR DECISION

Date: July 16, 2014

Citation: 2014 CFSRB 38

Indexed as: R.N. v. Dufferin Child and Family Services (CFSA s. 68)

INTRODUCTION

1R.N. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on November 25, 2013 pursuant to sections 68.1(4) 4 and 68.1(4) 5 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended, (the “Act”) regarding a matter relating to services sought or received from Dufferin Child and Family Services (the “Society”).

2A jurisdiction hearing was held on February 27, 2014 and the Board determined that it could hear the following matters under s.68.4 (4) and (5) of the Act:

1. Failure of the Society to investigate the Applicant’s complaint regarding: a. father’s failure to consent to counseling for the children; b. verbal manipulation of the child over the telephone during telephone access; c. one of the children’s disclosure that his leg was run over by an all-terrain vehicle (ATV); d. one of the children’s complaint of injury to his private parts from a motorcycle accident; e. father showing children pornographic magazines.

2. The Society did not properly investigate the father when the worker identified the father being manipulative in response to the Applicant’s initial complaint;

3. Procedural requirement was not followed by the Society regarding reunification assessment;

4. Failure of the Society to obtain a copy of the psychological report with respect to the children’s father and stepmother and the Applicant being denied copies of the children’s report cards and academic assessment, changing son’s school without knowledge and taking both children out of the country twice;

5. The children are not receiving services regarding counseling related to domestic violence and parental alienation (“PA”);

6. The Applicant’s children are not allowed the right to practice their religious faith;

7. The Society’s failure to enforce the Applicant’s ex-spouse to allow telephone access between the Applicant and children;

8. The Society has not followed the views and preferences of the younger child as to whether he would like the Applicant to attend hockey games, school activities and live with both parents; and,

9. The Society’s failure to approve the Applicant’s mother as an access supervisor for supervised visits.

3An oral hearing in these matters was held on May 28 and 30, 2014. The Board finds in favour of the Society for issues numbered 1a, 1b, 1d, 1e, 2, 3, 4, 5, 6, 7, and 9. The Board did not make a finding and dismisses issues numbered 1c and 8; and issue number 2 was determined to be redundant.

BACKGROUND

4The Applicant has two sons born [ ] [ ], 2003 and [ ] [ ], 2008. She has been separated from the father of the children since 2009. She left the family home and took the children to a women’s shelter and alleged that the father was physically and emotionally abusive to her. Since that time and until the date of this application, the Society had received nine referrals of which seven were from the Applicant. Five of these seven referrals were not investigated because they did not raise child protection concerns in the view of the Society.

6The Society did identify that the Applicant and the father were engaged in a protracted pattern of conflict over custody and access issues that posed a risk of emotional harm to the children. In May 2012, the Applicant requested support from the Society in addressing the concerns she was having in managing the behaviour of the older child who was expressing a wish to live with his father. At that time, the children were residing primarily with the Applicant although there had been an earlier joint custody agreement between the parents for alternate weeks. The Applicant agreed to the older child’s wishes and he moved in with the father for about six weeks. At the end of six weeks, the Applicant wanted the child to return to her care. The Applicant believed at that time and continues to believe that she was a victim of PA.

7In June 2012, the Society received a referral from the children’s school that the Applicant had attended at the school and her behaviour raised concerns about the state of her mental health. The Society conducted an investigation that involved speaking with and observing the children in the Applicant’s home and in the father’s home. At the end of this investigation, the Society concluded that the children were at risk of emotional and/or physical harm due to the state of the Applicant’s mental health and problems coping with the children and subsequently opened an ongoing file.

8The Society remained involved with the children, the Applicant and the father. In December 2012, the Society apprehended the children from the Applicant’s care as the result of reports from the father and the children and the outcome of the Society’s investigation into the reported incidents. The apprehension was also based upon concerns raised about risks to the children by a social worker that conducted a custody and access assessment ordered by the court.

9The children have remained in the care of the father since December 2012 as per a court order and have had varying degrees of supervised access with the Applicant since that time.

ANALYSIS

10The Board has authority to determine if the Applicant was heard when she raised concerns with the Society, and when decisions were made. The Board also has the authority to determine if the Applicant received reasons for decisions made that affect her interests.

11The Board’s authority and the Society’s obligations are found in the following sections of the Act:

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.

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.

12In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 at paras. 13-14, the Board described the purpose of s.68.1(4) and (5) and addressed s. 68.1(4).4 as follows:

The 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.

To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.

13With respect to s. 68.1(4)5, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A parent must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

14The evidence that the Board heard and its conclusions with respect to each of the issues are set out in the following paragraphs.

ISSUES

Issue 1a: Failure of the Society to investigate the Applicant’s complaint regarding father’s failure to consent to counselling

15The Applicant alleged that the Society did not do anything to facilitate the father consenting to counselling for the children. She provided oral testimony about approaching the Society regarding concerning behaviours of the children who were acting out of control, calling her names, bed-wetting, and having nightmares. She alleged that she went to the Society on many non-specified occasions during the period 2010-2013 and that the Society refused to share her concerns regarding the children and did nothing to assist her to obtain father’s consent to counselling for the children which the Applicant had been unable to obtain from him herself.

16The Society testified that it had received a number of referrals during the period of time specified by the Applicant and had not identified any child protection concerns requiring its intervention. It described the situation as a high conflict situation between the Applicant and the father of the children with possible emotional risks to the children as a result. In its view, this matter was one between the father and the Applicant to mutually resolve and the Society did not have a role to play in it given that it was not a child protection concern.

17The Society gave evidence that when it received requests from the Applicant for help of this kind and other kinds it made her aware of resources available in the community that might be of assistance such as justice related services and children’s mental health services that operate within the Society’s network of services but which are independent and distinct from child protection services. In a letter dated July 4, 2012 from the Society’s Executive Director (“ED”) to the Applicant, reference is made to the assistance that the Society provided in obtaining consent from the children’s father, meetings and discussions with both the Applicant and the father between May and June 2012 regarding the matter and the successful resolution of it.

18The Board concluded that the Society heard the Applicant and attempted to assist both parents to resolve this matter despite it not being a protection concern and therefore dismisses this complaint.

Issue 1b: Verbal manipulation of the child over the telephone during telephone access

19The Applicant testified that beginning in March 2012, the older child cried every time he got off the phone with the father. As a result, the Applicant decided to listen in and record calls between the father and this child and as a result heard the father saying horrible things to the child including things about her. The Applicant contacted the Society in April 2012 regarding this matter and spoke with an intake worker. The Applicant was told that if there was not an existing court order that allowed the father to talk with the children, then the Applicant could choose to not allow phone access. The worker would not listen to the recording and informed the Applicant that this was not a protection concern. Subsequently the Applicant spoke with a children’s mental health professional who suggested that it was a protection concern. The Applicant stated that she repeatedly attempted to get the Society to listen to the recordings she had made but it never agreed to do so.

20The witness for the Society stated that it did not consider this concern to be a protection concern per se but a reflection of the ongoing conflict between the Applicant and the father of the children. This witness acknowledged that she had reviewed the transcript of the recording but did not listen to the recording. No action was taken since in the view of this witness, the referral did not warrant undertaking an investigation and she reiterated that it was not considered to be a protection concern. However, the Society did have an ongoing concern regarding the custody/access dispute between the parents and the risk it posed of emotional harm to the children. As a result of this, the Society had ongoing contacts with both parents and the children in the interest of monitoring this overall conflict and did not conclude that either parent was attempting to alienate the children from the other parent.

21It is not the Board’s role to assess the content of the calls between the father and the child and make an assessment of its own. The Board is responsible for reviewing the Society’s actions in response to the concern raised by the Applicant. In this instance, the Society ultimately did review a transcript of the calls provided by the Applicant. It may not have done so in as timely a fashion as the Applicant wished. However, it concluded that the content did not warrant verification as a child protection concern.

22The Board concluded that the Society heard the Applicant and its position was that the matter was not a protection concern and therefore did not intervene for this reason which was communicated to the Applicant. The Board dismisses this complaint.

Issue 1c: Disclosure by one of the children that his leg had been run over by an ATV while in his father’s care

23The Applicant testified that she told her worker [the worker] about this incident in the summer of 2012 but the worker did nothing. The Applicant submitted a letter with no date but believed it to be sent around the end of July 2012 to the Society’s ED in which she itemizes many concerns including mention of one of the children’s legs being run over with an ATV. She was unable to produce the written response to this letter which she alleged that she received. During cross-examination the Applicant conceded that the Society did review the incident and did not validate it as a protection concern.

24The Society’s witness testified that she was unable to find any information in the Society’s records regarding this specific complaint or a record of any investigation related to it.

25The onus is on the Applicant to make her case. In this instance, the Board concluded that the Applicant did not provide sufficient reliable information to make a finding and therefore dismisses this complaint.

Issue 1d: One of the children’s complaint of injury to his private parts from a motorcycle accident

26This complaint was made while one of the children was attending summer camp and it was referred to the Society by the camp. The Applicant testified that she spoke to the worker [another worker] who interviewed the father and made him aware of safety concerns and that no further investigation was required.

27The Society witness confirmed that the Society had received a call from the child’s day camp advising that he had complained to them. Based on the information it received, it concluded that this was not a child protection concern and that the camp would be informing the parents.

28The Board concluded that both the Applicant and the children’s father were made aware of the referral made by the day camp worker and the outcome of the Society’s review of the matter. This complaint is dismissed.

Issue 1e: Father showing children pornographic magazines

29The Applicant testified that this occurred in 2006. The father is alleged to have had a porn addiction and showed pictures of nude women to one of the children. She testified that she had given this information to the worker [the worker] when the file was opened in 2012 and raised it as a concern but there was no further discussion of the matter. She stated that she did not speak with anyone else about the matter. This is also something that she raised in court along with her view that the father has issues with women and a sex addiction but the court did not respond to this issue.

30The Society’s witness stated the incident referred to pre-dated the time that the ongoing family file was opened by the Society and it did not have knowledge of it at the time that it occurred.

31The Board concluded that the Applicant did not make the Society aware of the incident at the time that it occurred and it could not have heard it. Therefore, the matter is dismissed.

Issue 2: The Society did not properly investigate the father when the worker identified the father being manipulative in response to the Applicant’s initial complaint

32The Applicant acknowledged that this issue was the same as Issue 1b.

Issue 3: Procedural requirement was not followed by the Society regarding reunification assessment

33The Applicant testified that she had been asking the Society for reunification counselling for her older son and herself because of their estrangement. The Applicant had supported the child in his wish to live with his father for a period of time in the spring of 2012 and after several weeks she wanted the child to return to her home. She approached the Society at this time for support in this endeavour. She stated that in her view the Society has reunification tools to use at its discretion as described in its own Child Protection Standards.

34The Society clarified that it does have such tools however they are used in situations where children are in foster care and there is a plan to reunite these children with their birth parents. They are not designed for use where there is a conflict between parents such as in the Applicant’s situation.

35The Society’s witness confirmed that the Applicant did discuss reunification counselling specifically to focus on the Applicant’s belief that the child’s father had alienated him from her. Neither the Society nor the social worker that conducted a court ordered custody and access assessment had verified PA. However, both the social worker and a psychologist who had assessed the Applicant recommended that she receive counselling and that, at the time, the children were not candidates for talk therapy. This was communicated to the Applicant in a letter dated July 4, 2012 from the Society’s ED. The Society witness also described its plan for increased access between the Applicant and the child to improve their relationship and that took into account both the child’s wishes and the progress that increased access was making over time. The Society's plan for increased access was designed to address the estrangement between the Applicant and the older child. From the Society’s perspective, there was no plan for reunification, i.e., a plan for the children to live with the Applicant.

36The Board concluded that the Society heard the Applicant regarding her wish to be reunited with her older child after a period of estrangement and responded by developing a plan for increased access between them. The Board dismisses this complaint.

Issue 4: Failure of the Society to obtain a copy of the psych report with respect to the children’s father and stepmother and the Applicant being denied copies of the children’s report cards and academic assessment, changing son’s school without knowledge and taking both children out of the country twice

37The Applicant testified that she provided a copy of her psych report to the Society in early December 2012. She stated that she asked the Society worker [a third worker] for the father’s and stepmother’s reports in court on December 21, 2012. She asked several other workers for these reports and was told that they did not have them and did not need them. Similarly she asked workers for copies of report cards and academic assessments for the children since the father had denied her copies of them. The worker [a fourth worker] told her that this matter was between the Applicant and the father although she would try to assist her in getting copies. The Applicant also raised the issue regarding the older child changing schools without her knowledge and the children being taken out of the country without her consent.

38The Society’s witness stated that it had no protection concerns regarding the father or the stepmother and did not request that psych assessments be done on the father or the stepmother. The psych report that was done on the Applicant was the result of a recommendation that the social worker doing the court ordered assessment made as a result of her concerns about the Applicant. The Society witness further testified that the sharing of report cards and academic assessment reports were matters to be negotiated between the Applicant and the children’s father and that they were not records that the Society had or sought. She stated that the Society had meetings with both parents to discuss the matter and ultimately the Society informed the school that it could release report cards to the Applicant.

39The Society did not have the information regarding the child’s change in schools to provide to the Applicant and encouraged the father to provide it to the Applicant. The child was in the care of the father at the time and the Society’s view was that it was his responsibility to keep the Applicant informed. Similarly, the Society was not aware until after the fact that children were taken out of the country and would expect the father to inform the Applicant at the time but did not consider this to be a child protection concern.

40The Board concluded the Society informed the Applicant that it did not have or need copies of the reports that she requested from them and how she might access them along with information regarding the change in schools and the children’s travel plans. The Board dismisses this complaint.

Issue 5: The children are not receiving services regarding counselling related to domestic violence and PA

41The Applicant testified that she repeatedly made requests for counselling for the children related to domestic violence and PA. She submitted two letters into evidence to support this complaint. The first letter dated June 29, 2012 to the Society ED outlined her concerns in particular regarding PA and the impact of it on her older child. The second letter dated July 4, 2012 is a response from the ED that references the Applicant’s letter and the ED’s understanding regarding the services the children had received, the Society’s ongoing investigation at the time and the assistance the Society was providing in working with both parents to obtain consent for counselling for the children. There is no specific reference in this letter to PA.

42However, the Society’s witness stated that it relied upon the expert evidence of the social worker who conducted the custody and access assessment in concluding that the children had not been subjected to PA by the father and it would be inappropriate to provide counselling to the children based on the Applicant’s unfounded belief. The Society’s witness also stated that domestic violence was an issue that pre-dated the Society’s involvement with the Applicant and that the Applicant had been advised to seek community services at various times when she made such requests to the Society. The Society does not have a mandate to directly provide such services.

43The evidence supports that the Society was aware of the Applicant’s concerns about PA. However, it took the position that PA was not happening and therefore disagreed with her. It also directed her to resources where she might obtain such services since the Society does not have a mandate to directly provide them. The Board concluded that the Society did hear her concern regarding this matter gave her reasons for its decision and therefore dismisses this complaint.

Issue 6: The children are not allowed the right to practice their religious faith

44The Applicant stated that during the period when she was having supervised access with the children after their apprehension, she requested increased access so that she could take the children to church on Sunday but that the Society did not support this request. She was informed that the Society did not have workers available on Sunday to supervise such access visits with the children. The Society did not suggest that the children could not practice their faith but said that supervision was not available on weekends. The children were not with the Applicant during times when they could attend at the Applicant’s church. This information was given to the Applicant verbally.

45The father and the Applicant were members of different Christian denominations and attended at different churches. During part of the period when the Applicant had access, the children were not in a position to attend at the mother’s church since the Society did not have workers available on Sundays to supervise these access visits. Furthermore, the focus of the supervised access visits was to facilitate interactions between the Applicant and the children.

46The Board concluded that the Society was aware of the Applicant’s concern regarding this matter, provided her with reasons for its decision in relation to it and dismisses it.

Issue 7: The Society’s failure to enforce the Applicant’s ex-spouse to allow telephone access between the Applicant and the children

47The Applicant testified that after the apprehension of the children and their placement with the father in December 2012, the court had ordered phone access between her and the children on a regular basis and that the father did not comply with this order. The parties returned to court in early January 2013 and the Applicant was given phone access at the discretion of the Society at that time. Access was suspended at times because of various problems. Both the Applicant and the Society concurred that the Applicant’s phone access with the children was not consistent for a period of time.

48The Society testified that it encouraged phone contact with the children and was hearing from both parents about problems they were dealing with the in fielding calls from the other parent. It directed the parents to attempt to sort it out at the time. Ultimately, the Society implemented a three-way calling protocol to ensure that the children were connected on a regular basis with the Applicant.

49The Board concluded that the Society did hear the Applicant’s concern regarding this matter and intervened in order to ensure telephone access with the children. The Board dismisses this complaint.

Issue 8: The Society has not followed the views and preferences of the younger child as to whether he would like the Applicant to attend hockey games, school activities and live with both parents.

50The Applicant testified that she had spoken with Society worker [third worker] after the apprehension of the children about conversations she had had with her younger son in which he talked about returning to her home. She stated that he always wanted her to come to his hockey games and wanted her at his school and she believed that after the apprehension the father was standing in the way of this happening. The Applicant stated that the worker said she would review things and come up with a plan but that she never did so.

51The Society’s witness testified that she could not find any case notes documenting the interchange between the Applicant and the worker as described by the Applicant. However, she stated that the Applicant’s access to the younger child was supervised at that time and the Society would not have approved the kind of contact described by the Applicant due to the Society’s safety concerns. Furthermore, the contact between the Applicant and the children at that time was focused on strengthening the relationships between them and the Applicant’s attendance at hockey games would not have served that purpose in her view. In addition, the Society sought the input of a representative from the Office of the Children’s Lawyer as an objective party to obtain the wishes of the children regarding their contact with the Applicant.

52There was inconclusive evidence regarding the contact the Applicant had with the worker. Although the Society did not produce any records related to this matter, it gave its position regarding the issue during the proceeding and the reasons for its position. The Board concludes that there was insufficient evidence provided by the Applicant to make a ruling in her favour and therefore dismisses this complaint.

Issue 9: The Society’s failure to approve the Applicant’s mother as an access supervisor for supervised visits

53The Applicant stated that she proposed that her mother supervise access visits to a number of Society workers and that her mother was not approved and she was not given any reasons for this decision. The Society’s witness testified that the Applicant was informed that initially access would take place at the Society and would be supervised by the Society due to its safety concerns. The Applicant was also told that over the long run, the Society would consider other kinds of arrangements including having her mother supervise visits in the Applicant’s home at the appropriate time.

54It is clear that the Society had safety concerns during a period of time following the apprehension of the children and felt the need to supervise access themselves. However, it was clearly stated during the proceedings that the Society had informed the Applicant that it was open to other arrangements as the situation unfolded including considering the Applicant’s mother as a possible resource.

55The Board concluded that the Society did consider the Applicant’s request to have her mother supervise her access to the children and informed her that such an arrangement might be possible in the future. The Board dismisses this complaint.

CONCLUSION

56The Board concluded that there never appeared to be real engagement between the parties despite the efforts on each of their parts to communicate with the other. The relationship deteriorated over time because the Applicant clearly had expectations of the Society that went beyond its mandate and could not be met by it. In addition, the Applicant and the Society were not in agreement regarding a number of key concerns of the Applicant’s, e.g., the need for, timing and type of counselling for the children, the issue of PA and root causes of the estrangement of one of the children from the Applicant. These disagreements only served to further distance the parties from one another and make any real engagement and genuine communication difficult if not impossible. The testimony of the Applicant herself, that of the Society and the documents submitted into evidence support the general conclusion that the Society heard the Applicant’s concerns and gave her reasons for the decisions that it took. They also make it clear that the Applicant would not agree with that conclusion since she did not get the responses that she expected or wanted. However, that is not the test to be met under the circumstances.

57In summary, the Board found in favour of the Society for issues numbered 1a, 1b, 1d, 1e, 2, 3, 4, 5, 6, 7, and 9. The Board did not make a finding and dismisses issues numbered 1c and 8; and issue number 2 was determined to be redundant.

CONFIDENTIALITY ORDER

58Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure, parties and their representatives must not use, share, discuss 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 purpose outside of the Board’s proceedings.