C.F. v. Family and Children’s Services of the Waterloo Region, 2014 CFSRB 65

CHILD AND FAMILY SERVICES REVIEW BOARD

C.F.

v.

Family and Children’s Services of the Waterloo Region

REASONS FOR DECISION

Date: November 20, 2014

Citation: 2014 CFSRB 65

Indexed as: C.F. v. Family and Children’s Services of the Waterloo Region (CFSA s.68)

INTRODUCTION

1C.F. 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 Family and Children’s Services of the Waterloo Region (the Society) on May 13, 2014.

2The Application consisted of the following complaints:

That the Society has not heard the Applicant’s service concerns or heard her when decisions were made and has not provided her with reasons for decisions that affected her interests, regarding the following:

1- The Society’s decision to keep the Applicant’s file open after the child protection worker had advised her that her file was to be closed on March 10, 2014.

2- The Society’s refusal to provide the Applicant and her legal counsel with a copy of her file including the video recording of alleged drug use in the Applicant’s home.

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 November 12, 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 her 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 is the mother of two boys born [ ], 2013 and [ ], 2007. She lived with [ ], the father of the youngest boy, in a house jointly owned with his parents, until October 28, 2013. On that day, [the father of the youngest boy] assaulted the Applicant. They have lived separate and apart since then, with the Applicant remaining in the family home with the children.

6The Society had previous involvements with the Applicant between 2000 and 2007 and then again from 2008 until the file was closed in November of 2011. The child protection concerns related to the Applicant’s drug use.

7Following the assault against the Applicant, the Society received a referral and initiated an investigation. Between October 2013 and February 2014, the Society provided services to the Applicant on a voluntary basis to assist the Applicant in dealing with the aftermath of the assault, both for herself and her children.

8On December 22, 2013, the Society received a referral from the Applicant’s former father-in-law alleging the Applicant had started using cocaine again. On that day, a Society worker, accompanied by police officers, attended the Applicant’s home and found no child protection concerns. The Applicant informed the Society worker she believed the report was motivated by her decision to no longer provide access visits between the grandparents and her children until the custody and financial issues related to the separation were resolved in court.

9Because of her past history, the Applicant started attending by-weekly supervised drug screens to provide proof that she was not using cocaine and she continued working cooperatively with the Society worker assigned to her family.

10During the second week of February 2014, the Society received a second referral from the Applicant’s former father-in-law alleging the Applicant was using drugs again. The Society requested a home visit with the Applicant; which had not been done since October of 2013. On February 14, 2014, the Society worker attended the Applicant’s house and informed her that her former father-in-law had planted a camera inside her garage and had provided the Society with footage showing the Applicant and some friends smoking marijuana. During this visit, the worker attempted to show the Applicant some of the footage, but the file would not load in the Applicant’s laptop.

11The Applicant told the Society worker that she had used small quantities of marijuana outside the house at night when her children were sleeping, that she had discussed doing so with her family physician and that she was using the drug to assist her get to sleep at night. The Applicant agreed to provide the Society with a letter from her doctor confirming this information and, she agreed to cease using marijuana. The Applicant also offered to be subjected to a hair follicle test to confirm her statements. The Society worker indicated that this was not necessary. The Applicant also provided the Society worker with 14 negative urine cocaine screen results that day.

12Upon leaving the Applicant’s home that day, the Society worker indicated to her that he would be discussing her file with his supervisor to determine how they would proceed from there and be in touch with her shortly.

13On March 10, 2014, the Society worker contacted the Applicant by phone and told her that her file was being closed. This was also later confirmed to the Applicant by her former spouse’s probation officer.

14By early April, not having received a letter to confirm that her file was closed, the Applicant anticipated there was an issue.

15On April 8, 2014, upon returning home from taking her older son to an appointment with his psychiatrist, the Applicant found the Society worker and his supervisor at her home. Her younger son had remained home as he was asleep and a friend of the Applicant was babysitting. The Applicant allowed the worker and supervisor in her home and both she and her friend were interviewed. Her friend freely discussed having had a problem with cocaine use in the past and having attended rehab.

16The Society indicated that a new anonymous report had been received by the Society regarding the Applicant’s drug use and association with potentially dangerous individuals. The Society requested consent to speak with the Applicant’s supports and to schedule a meeting with all of them to discuss any child protection concerns. The Applicant agreed to do so, but the Society never pursued this. The Society also requested a letter to confirm the Applicant and her son had participated in a counselling program. She provided this letter shortly after.

17A few days later, the Society worker called the Applicant and requested further consents to speak to the Applicant’s family doctor as well as her son’s school. The Applicant indicated that she would consult her legal counsel on this issue. After doing so, as she did not feel necessary to sign the requested consents, the Applicant provided the Society with a letter from her family physician instead.

18On May 9, 2014, the Applicant received a letter from the Society indicating that they were now going to keep her file open and requesting that she enter into a service agreement.

19On May 14, 2014, the Applicant and her legal counsel attended at a meeting at the Society’s office to discuss the open investigation. The Applicant requested a copy of her file including a copy of the video recordings provided by her former father-in-law. This request was denied by the Society.

ANALYSIS

20The 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.

21In 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.

22To 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.

23The Board only heard testimony from the Applicant at the hearing. The Society chose to not present any evidence.

24From the testimony of the Applicant, it was clear that she raised her concerns to the Society that the reports received were made by her ex-spouse and his family and were unfounded and malicious. It is also clear from her testimony and from the documentary evidence submitted at the hearing that no new concerns were raised after the announcement that the Applicant’s file would be closed on March 10, 2014. The new report that was made related to the same facts that had been known by the Society when the decision to close the Applicant’s file was made.

25In its Summary Reply, the Society indicates that it sent a letter to the Applicant on May 7, 2014 which addressed the new referral and resulting investigation. The Society claims that this letter responded to the Applicant’s concerns and explained the decisions of the Society. The Society further claims that on May 14, 2014, the Applicant and her legal counsel attended at a meeting at the Society’s office which provided the Applicant a further opportunity to discuss her concerns and to make representations regarding the open investigation. The Society claims that during this meeting, the Society provided the Applicant with further explanation for the Society’s decisions that have impacted the Applicant’s interests.

26In the May 7, 2014 letter the Society worker indicated that:

a. The Society determined that with respect to the initial referral of October 29, 2013 there was concern for the Applicant’s children’s safety and wellbeing due to their exposure to domestic violence and that this concern was being addressed through the criminal court, the Applicant’s attendance at a support program with her child and through the Applicant’s ongoing work with the school and the medical professionals.

b. The second referral of December 22, 2013 was determined unsubstantiated.

c. With respect to the referral of February 10, 2014, the Society determined that there was concern for the Applicant’s children’s safety due to her use of marijuana which appeared to be increasing in frequency between December 2013 and January 2014. The Society also determined that there was concern for the Applicant’s children’s safety due to another adult that was using drugs in the Applicant’s garage on his own and with the Applicant and the level of supervision the children had while the Applicant was in the garage using marijuana.

d. The Society determined that the Applicant mitigated these last concerns by admitting having used marijuana due to the stress of the assault and inability to sleep and by cooperating with the Society by showing the worker the marijuana in her possession and disposing of it. The Society determined that the Applicant also mitigated the concerns by agreeing to abstain from the use of marijuana and by seeking professional help either through counselling or family doctor to address her anxiety and insomnia. The Society determined that the Applicant also mitigated the concerns by agreeing that no one would be permitted to use illegal substances at her home or be left in a caregiving role if they were impaired by drugs or alcohol. The Society determined that the Applicant also mitigated the concerns by providing a letter from her family physician confirming she had discussed her marijuana use with him and her stopping the use of marijuana.

e. With respect to the April 1, 2014 referral, the Society determined that having received further information about the Applicant’s substance use and the individuals the Applicant associated with required a review of the information and additional assessment efforts to complete the Society’s investigation. To that end, the Society worker and supervisor had attended the Applicant’s home on April 9, 2014 and found F.B. in a care giving role to the Applicant’s youngest son while the Applicant had been out to a psychiatrist appointment with her older son. The Society determined that while F.B. was observed to be alert and attentive to her son’s needs, it was of concern that with her knowledge of his addiction to cocaine and his ongoing use of marijuana, she had chosen him to care for her son. The Applicant was also asked that day how she was managing her stress and addiction history. She indicated that she was considering following up with individual counselling. The Applicant further cooperated with the investigation by signing consent to speak with her support persons [ ] and [ ]and by referring herself for counselling.

f. The letter continued by stating:

Although, initially we planned to close your file the further information that was reported and our additional efforts to assess the child protection concerns have led us to believe that further information needs to be provided and actions need to be regularly observed by attending your home, communicating with your supports and seeing the children over a sustained period of time. We would require a minimal amount of a three to four month period to assess this information below before we consider closing your file.

g. The letter then stated a list of issues the Society wished to determine during the further period of service as follows:

1. Consistent, stable and safe supervision of the children

2. Coping with stressors in a healthy manner

3. Children’s basic needs being met

4. Substance use not impacting the children’s care

h. The letter then concluded by stating that the Society needed the Applicant to complete a Service Plan as per the provincial standards and invited her to contact the worker if she had any questions.

27The Board notes that, contrary to what is claimed in the Society’s Summary Reply, there is no mention in this letter of any of the concerns raised by the Applicant on April 9, 2014, about the source of the April 1, 2014 referral and about her belief that it was a malicious referral motivated by the custody and financial dispute with the Applicant’s former spouse and his family. Similarly, there is no mention in this letter of the request the Applicant made for a copy of the video footage that formed the basis of the allegations raised against her. Finally, there is no mention of the reason why the decision to close the Applicant’s file was reversed based on similar information to what was known by the Society when the initial decision to close the Applicant’s file was made in March of 2014.

28Through the Applicant’s testimony, the Board heard that she raised a number of times, both before and at the May 14, 2014 meeting held at the Society’s office, that she was concerned that the Society was letting her former spouse re-victimize her by bringing foward false allegations which resulted in her file being kept open.

29The Applicant testified that she never received any response from the Society in that regards other than a statement that the Society has to investigate all reports. The Applicant testified that when she raised this issue again at the May 14, 2014 meeting. The Applicant testified that the Society’s response was to simply repeat that the report was anonymous. When asked by the Board, the Applicant testified that the Society did not mention any policy that would relate to its obligation to maintain a referent’s anonymity. As the Society chose not to present any evidence, the Board is not aware whether such a policy exists at the Society.

30The Applicant also testified that the Society also did not engage in a meaningful discussion with the Applicant about the possibility that the referral was malicious or what could be done to determine if it was and whether the Society has any policy in place in that regards. Again, as the Society chose not to present any evidence, the Board is not aware whether such a policy exists at the Society. However, the Board is aware that, when receiving any referral from the community, the assigned worker must engage in an assessment of all the information available in order to determine whether the report meets the threshold of intervention under the eligibility spectrum; a tool designed to assist Children’s Aid Society child protection staff in making consistent and accurate decisions about a child or family’s eligibility for service at the time a society becomes involved.

31The Board finds that the fact that the Applicant became involved with the Society as a result of being the victim of partner violence and that the partner and his family then engaged in a series of reports to the Society about the Applicant should at the very least have given rise to a discussion with the Applicant about the possibility that the referrals were malicious in nature in order to inform the decision on the necessity to remain involved with the Applicant.

32The nature of this discussion need be meaningful and timely in order to comply with the Society’s obligation under section 2(2)a of the Act, to provide the Applicant with an 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. In this case, it was clear to the Board that the Society not only did not listen to the Applicant’s concerns about the source of the referrals, it also did not provide her with any information that would allow her to make informed responses to the Society.

33The Applicant testified that every time she asked why the Society had changed its decision to keep her file open, the Society kept referring back to the video that had already been discussed in February and that had resulted in a previous decision to close the file in March 2014. The Society did not explain how the referral of April 1, 2014 changed the Society’s assessment, only that it did. Moreover, the Society, while heavily relying on the content of the video as a basis of its continued involvement decision, did not allow the Applicant to obtain the information contained in the video as she was refused a copy every time she requested it.

34This is concerning to the Board given that the Board heard the testimony of the Applicant that initially, the assigned protection worker offered her to look at the video but it was only because of technical difficulties that she was not able to. Later, when she requested a copy, the Society refused to provide it to her. Not only was she not given a reason for this change of position, which in and of itself is a concern as it is a failure as described above, it is also problematic in the sense that by denying her access to the video, the Applicant was never in possession of the required information needed to engage in meaningful discussion with the Society and, as a result, she could not influence the decisions made about issues that greatly affected her interests and, was not in a potion to understand the decisions made by the Society.

CONCLUSION

35The 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 her with reasons for the decisions made in response to those concerns as required by section 68.1(4) 5 of the Act.

ORDER

36The Board orders the Society to provide detailed written explanation and reasons to the Applicant explaining the following:

a. Whether the Society has a policy in place regarding the non-disclosure of anonymous referrals and if it does to provide a copy of that policy to the Applicant.

b. Whether the Society has a policy in place to address malicious referrals and if it does to provide a copy of that policy to the Applicant.

c. The actions that the Society took to determine that the referrals made by the Applicant’s former spouse and his family were not malicious in nature.

d. The factual basis for the decision to keep the Applicant’s file open after the April 1, 2014 referral and, how these facts rated on the eligibility spectrum to justify ongoing services.

e. The reasons why the Society changed its position regarding letting the Applicant see the content of the video provided by her former father-in-law.

f. The reason why the Society is refusing to give the Applicant a copy of the video taken of her inside her residence by her former father-in-law or to let her view the content of the video.

37The Society is to provide the above mentioned response to the Applicant within 30 days of this order.

CONFIDENTIALITY ORDER

38Pursuant 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.

NATHALIE FORTIER

_____________________

Nathalie Fortier

Vice-Chair