M.D. v. Durham Children’s Aid Society, 2014 CFSRB 43

CHILD AND FAMILY SERVICES REVIEW BOARD

M.D.

v.

Durham Children’s Aid Society

REASONS FOR DECISION

Date: August 8, 2014

Citation: 2014 CFSRB 43

Indexed as: M.D. v. Durham Children’s Aid Society (CFSA s.68)

INTRODUCTION

1M. D. filed an application with the Child and Family Services Review Board (the “Board”) 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”), against the Durham Children’s Aid Society (the Society) on April 28, 2014.

2The Application consisted of the following complaints under s.68.1(4)4 and 5 of the Act, as summarised in the Pre-Hearing Report of June 23, 2014.

That the Society has not provided the Applicant with an opportunity to be heard and represented when decisions affecting his interests were made and when service concerns were raised with regards to the following:

1. The investigation of the Applicant’s concerns for his daughter’s safety in the care of the mother as reported in February 2014.

2. The concerns raised by the Applicant about the actions of the assigned family services worker during the investigation; for example the decision to close and re-open the file, the decision to attend the daughter’s school to interview her, the communicating to the daughter that the file would be closed.

And that the Society has not provided the Applicant with reasons for decisions that affected his interests, regarding the following:

3. The decision to initially close the file after the first set of interviews in early March 2014.

4. The decision to re-open the file.

5. The decision to include the Applicant in the voluntary service agreement.

3The Board must decide whether or not the Applicant’s concerns were heard by the Society and whether or not the Society gave the Applicant reasons for its decisions. The hearing on the merits was held on July 14, 2014.

4For the reasons set out below the Board finds that the Society did not hear the Applicant’s concerns as required by section 2(2)a of the Act, and that the Society did not provide him with reasons for the decisions made in response to those concerns as required by section 68.1(4) 5 of the Act.

BACKGROUND

5The Applicant has been separated and divorced from his spouse since late 2008. Their daughter (the “Child”) was born in December 2002.

6The parents of the Child have joint custody, and have an arrangement where the Child lives primarily with her mother, but visits with her father on a regular basis. Throughout the school year, the Child has overnight visits every Tuesday as well as every alternate week-end. During the summer, visits are on alternating weeks. This arrangement has worked for some time, and is satisfactory to all three persons involved.

7The Child lives with her mother; also living in the same home are her half-brother, age 16, and his girlfriend, age 18.

8The Society has been involved with the family since the Applicant called the Society on February 27, 2014. The purpose of the Applicant’s call to the Society was to report his concerns about his daughter while she was in the care of her mother. He believed that his daughter was at risk because her mother was having problems with drugs and alcohol, as well as many male visitors to the house. The Applicant also reported to the Society that his daughter had complained to him about these issues.

ANALYSIS

9The relevant provisions of the Act are as follows:

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(1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may,

(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section;

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.

68.1(5) Upon receipt of a complaint under this section, the Board shall conduct a review of the matter.

68.1(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.

10In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 at paragraphs 13-14, the Board described the purpose of s.68.1(4) and (5) 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.

11To meet the statutory obligation reasons must be timely and detailed and the Applicant must be given sufficient information to understand what factors were considered in making a decision and why.

12The Board heard testimony from the Applicant and from the Society’s Intake Worker (the “Worker”) at the hearing. The Board examined in detail the five issues listed in the Pre-Hearing Report, as follows.

Issue 1: The investigation of the Applicant’s concerns for his daughter’s safety in the care of the mother as reported in February 2014.

13The Applicant testified that the Worker first called him on March 10, in response to the Applicant’s February 27 call to the Society. The Applicant told the Board that, throughout the four months that he has been in contact with the Society, the Worker consistently did not truly hear his concerns, and chose not to give any credibility to the Applicant’s allegations that his daughter was at risk while she was with her mother. Three risk factors were identified by him: the history of alcohol abuse, the illicit drug use, and the presence in the home of men who were unknown to the Child. The Applicant knew of this by virtue of his history with his former spouse, by comments made on numerous occasions by the Child herself, and by direct observations by the girlfriend of the Child’s half-brother who lived in the house of the Applicant’s former spouse. The Applicant’s testimony was that, on many occasions when they were still a couple, he would refuse to go somewhere with his spouse, because she reeked of alcohol. He often found hidden empty liquor bottles in their home. The Worker did not give the Applicant reasons for why he chose not to believe him, other than saying that he believed that the Applicant was “fixated” on his former spouse, and that he should go for counselling.

14The Applicant told the Board that the Worker seemed to turn away from any facts that might give credibility to his complaint about his daughter being at risk. He described to the Board an instance where the Worker did not want to pursue information from a third party that could have validated the Applicant’s concerns about risk to his daughter. On February 14, the Worker attended a meeting at the Child’s school. The teacher told the Worker that she had seen the Child’s mother “stoned”, but not smelling of alcohol, at a parent-teacher interview on the evening of February 14. The Worker acknowledged that he did not pursue this issue with the teacher. When asked by the Applicant if the Worker did not see this as a subject to explore fully with the teacher, the Worker acknowledged that he did not substantially pursue this with the teacher. The Worker told the Board that she did not explain the term “stoned” to him. The Worker in turn did not pursue the issue in any depth with the teacher, thereby ignoring the information given to him by the teacher as a credible independent third party. This was one of many factors that lead the Applicant to believe that the Worker was not fully exploring the Child’s living conditions when she was living with her mother. The Applicant suggested that the Worker wilfully ignored the information he received from the teacher, and when he met with the Child after finishing his meeting with the teacher, he did not change what he had already planned to discuss with the Child. More importantly, despite the new information received from the teacher, the Worker continued with his plan and informed the Child at that meeting that he would close the file. When challenged why he would pursue such a course of action, after the potentially serious allegation made by the teacher, the Worker testified that he was going to close the file, because “that was the plan”.

15With regards to the number of strangers that would come into the mother’s house, sometime picking up or sometime dropping off a package, the Worker also acknowledged to the Applicant that, in retrospect, it would not be unreasonable for the Child to be concerned and fearful at the number of strange men coming into the home on numerous occasions. The Worker also acknowledged that it was very unlikely that the Child could have been coached by him or others on her perception of her fears about the events in her home.

16The girlfriend of the Child’s half-brother on a number of occasions verified to the Applicant the risk factors, but she chose not to be a witness at the hearing because she felt that her testifying against the Child’s mother would inevitably lead to a quick breakdown in her current living arrangement. In his application to the Board, the Applicant stated that, in his view, the Worker very early on in the process chose not to believe the Applicant, and chose to believe the former spouse’s denials of problems with the issues as identified by the Applicant. At the Applicant’s urging, the Worker did meet with the girlfriend. He explained that most of the time he spent with her in discussion was about the Child’s mother, and that he was not free to share with the Applicant confidential information relating to the mother. The Worker also testified that, at the beginning of the conversation with the girlfriend, she had asked if her information could be kept confidential. The Worker told her that he could not guarantee her confidentiality in what she would say about the Child’s mother. This undoubtedly put a major limitation on what the girlfriend was willing to share with the Worker, given that she was dependent on the Child’s mother for the continuation of her current living arrangements.

17Similarly, the Applicant told the Board that the Worker consistently refused to believe the Child when she reported some of the incidents that appeared to involve drugs, alcohol, or strange men in the house. The Applicant testified that his daughter had described to him incidents where she was unable to wake up her mother when she had been drinking. The Applicant related that the Worker felt that the Child had been coached or influenced by adult conversations about these topics. The Worker, after discussion with the former spouse, chose to believe her version rather than the version of the Applicant and of the Child relating to the risk factors in the home. The Worker explained that he would not give much credibility to the Child’s comments about her fears and the risks in the home because he believed to a large extent that the Child was coached and influenced by the Applicant into saying certain things, and the he did not believe the Applicant’s or the Child’s narrative about the risks the Child faced, because their stories were “too similar”. The Worker testified that there were at least four sessions, in late March and early April, where he met with the Applicant. At least one of these meetings his supervisor was present. This, he testified, was ample opportunity for the Applicant to be heard and to be given reasons for the Society’s actions.

18The Board finds that the worker did not hear the Applicant’s numerous expressions of concern about the safety of his daughter, nor that he was given reasons for why the Society consistently believed the Child’s mother’s version of events, over that of the Applicant or the Child. To be truly heard involves not just a matter of how much time was allocated for the task; rather, it involves a true commitment to actively listening and taking the viewpoint expressed by the Applicant into serious consideration.

Issue 2: The concerns raised by the Applicant about the actions of the assigned family services worker during the investigation; for example the decision to close and re-open the file, the decision to attend the daughter’s school to interview her, the communicating to the daughter that the file would be closed.

19With regards to the Worker’s decision to close and re-open the file, this matter is dealt with below, relating to issues 3 and 4.

20With regards to the Worker’s decision to interview the Child at her school, without prior notice to the parents, the Worker testified that he wanted to speak to the Child to hear from her directly, without any possibility of either parent trying to influence what the Child might say to the Worker. His reason for not informing either parent before his interview with the Child was to get as clear as possible a message from her, without the possibility that she might be coached or influenced by either parent in the family parental conflict situation.

21The Board finds that the Worker’s decision to interview the Child, and to minimize the risk of either parent trying to influence her prior to this visit, was reasonable under the circumstances in this family where a high level of parental conflict exists. The Board dismisses the Applicant’s complaint about the Worker’s decision to interview the Child without prior notification to either parent.

22The Worker visited with the Child at school on April 17, without prior notice to either parent. At this visit, the Worker informed the Child that he would be closing the file. In his testimony the Worker acknowledged that, in retrospect, he should not have told the Child that the file would be closed and should have handled that situation differently. He did not give a reason as to why he chose to inform the Child of his intent to close the file.

23The Applicant testified that the Worker failed to follow through on having the Child attend counselling sessions. Recognizing the stressful situation that the Child was living in, the Applicant had wanted to have the Child involved in counselling on an ongoing basis. The Board finds that this item is now covered in the Voluntary Service Agreement between the Applicant, the mother, and the Society.

Issues 3 and 4: The decision to initially close the file after the first set of interviews in early March 2014 and the decision to re-open the file.

24These two issues raised in the Pre-Hearing Report are substantially inter-related and will be dealt with together.

25In his application and in his testimony, the Applicant made numerous references to the file being opened at the beginning of the service he received from the Society; he also gave two dates when he understood the file was being closed; this in turn would have necessitated that the file was re-opened after the first closing.

26In the early afternoon of the hearing, when asked by the Board what the exact dates were of the openings and closings of the file, the Worker responded that the file was opened on February 27, the day when the Applicant made his first contact with the Society, and that the file was never closed and remains open today. The Worker testified that he never closed the file, and that he only told the Applicant of his plan to close the file. He had the same rationale when speaking with the Child, that he was thinking of closing the file. The Worker drew a clear distinction between saying that the file was closed and saying that he was planning or thinking of closing the file. The Applicant clearly understood the Worker to communicate to him that the file was being closed. No evidence was submitted to show that, in his communications with the Applicant, the Worker explained to the Applicant that he was only planning or thinking about closing the file, but that in reality this never was put into effect. No communication was given to the Applicant, prior to the day of the hearing, to counter his impressions that the file had been closed twice and re-opened. The thought that his file was closed caused the Applicant immense stress, and was one of the main reasons why the Applicant filed his complaint to the Board.

27The evidence of the Applicant is that the Worker first informed him on April 7 that “he was closing the file”. The reason given for this closing was that the mother’s version of events regarding her drinking did not match his or the Child’s version. As well, the Worker allegedly said to the Applicant that he did not believe him because the Applicant’s and the Child’s stories were too “similar”. The Worker also implied that the Child was “coached”. The Applicant was unsure when the file was re-opened. The Applicant’s testimony was that on “April 10 [Worker] said that he is going to close the file once again. Once again he informed me that [Child] is not in any danger whatsoever.”

28The Board finds that for the period from April 7 to the date of the hearing the Society was in breach of section 68.1(4) 5 of the Act, due to the inconsistent and incomplete messages conveyed by the Worker about the status of the file. The Board finds that the Worker did not give the Applicant reasons for his intention to close the file on two occasions. The Board also finds the Worker also did not give reasons to the Applicant about why he changed his mind and did not close the file, which had never been closed by the time the hearing occurred. The full information about the status of the file was not communicated to the Applicant until the day of the hearing. This left the Applicant with wrong and misleading information, as to the status of the file. The right to reasons is paramount to helping the Applicant understand what the Society is doing, and to understand why it is doing certain things. This was not possible for the Applicant with this particular issue. The Board also recognizes that this failure in communication, aside from being inconsistent with the requirements of the Act, also caused significant grief and worry to the Applicant, which could easily have been avoided if the Worker had been more fulsome and straightforward in his communication with the Applicant.

Issue 5: The decision to include the Applicant in the voluntary service agreement.

29The Applicant does not understand why he was made an equal partner in the Voluntary Service Agreement. Specifically, the Applicant raised the issue of the Society having implied directly that he had a drinking problem. This is referred to in the Voluntary Service Plan document which was presented to the Applicant during his April 24 meeting with the Worker and his supervisor. One of the clauses in this Plan was that both parents were to “refrain from the use of alcohol and/or any illegal drugs while in a care giving role.” The Applicant took strong exception to this clause, as he states that he does not use alcohol or illegal drugs. Very early on in the hearing, the Society conceded that the Applicant does not have a drinking problem, and indicated that it was willing to remove that clause referring to the Applicant, as it had no evidence to back-up the implication that the Applicant had an alcohol and/or drug problem. A corrected version of the Plan was to be re-issued. At the conclusion of the hearing, the Society re-iterated its intention, as outlined above. The Applicant indicated that the Society gave him no explanation or reasons as to why he was included in the Voluntary Service Plan, specifically with regards to the reference to drug and alcohol use.

30The Board finds that the Society gave the Applicant no reasons for why it included him in the Voluntary Service Plan from the time it gave the Applicant the Voluntary Service Plan to the time of the hearing.

CONCLUSION

31The Board finds that on a many occasions, the Society did not exercise its responsibility to hear the Applicant, or to give him reasons on its decision to make or to not make certain decision. In certain situations, the Society offered a remedy to the Applicant; in other situations, especially with regards to the failure to being heard, no remedy can be imposed that would reverse the course of how this case evolved.

ORDER

32The Board orders the Society to provide detailed written explanation and reasons to the Applicant explaining the following:

a. The actions that the Society took in response to the allegations made by the Applicant regarding the risks to which the Child was exposed while in the care of her mother, and the reasons why the Society consistently chose to believe the version of events from Applicant’s former spouse as opposed to the events as described by the Applicant, the Child, the girlfriend, and the teacher.

b. The reasons why the Society did not clearly state to the Applicant the status of the file.

c. The reasons why the Society on two occasions failed to inform the Applicant that it had changed its mind, and was not closing the file, contrary to what it informed the Applicant about closing the file.

d. The reasons why the Society chose to inform the Child, during the Worker’s meeting with the Child at the school, that it was going to close the file.

e. With regards to issue 5, given the Society’s commitment to remove the clause that the Applicant strongly objected to, the Board makes no order on this issue.

CONFIDENTIALITY ORDER

33The hearing was conducted in private and was not open to the public. Pursuant 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.

JOHN F. SPEKKENS _____________________

John F. Spekkens

Presiding Member