J.H. v. Family and Children’s Services of Lanark, Leeds and Grenville, 2014 CFSRB 09

CHILD AND FAMILY SERVICES REVIEW BOARD

J.H.

v.

Family and Children’s Services of Lanark, Leeds and Grenville

REASONS FOR DECISION

Date: February 27, 2014

Citation: 2014 CFSRB 09

Indexed as: J.H. v. Family and Children’s Services of Lanark, Leeds and Grenville (CFSA s. 68)

INTRODUCTION

1This is an Application under s. 68.1 (4) 4 and 5 of the Child and Family Services Act.

2The Applicant’s complaint relates to the Worker who was the primary worker involved with the family (“Worker”). He alleges that the Society did not hear his service concerns about the Worker or provide him with reasons for decisions taken in relation to the complaints.

3The Society’s position is that the Board has jurisdiction only for certain time frames, based on the status of the Applicant.

4The Board heard the Application on January 13, 2014 and the received all final, written submissions from the parties on February 3, 2014. The Board finds that it has jurisdiction to hear the entire Application. The Board finds that the Society did not meet all of its obligations under the Act to the Applicant but that it did meet some of its obligations to hear him and provide reasons.

BACKGROUND

5The Applicant is a grandfather. His son and grandchildren lived with him from at least July 2012 until June 2013. In August of 2012, the Applicant was placed on bail conditions such that he could not live alone with the children in his home. During the course of the Applicant’s involvement, there were referrals from the Applicant about the mother, an assessment of his home for suitability for the children to live there, monthly visits and investigations. The family has an open child welfare file. According to the Society, up until the grandchildren moved out the Applicant was privy to information in the child welfare file with the knowledge of the mother and father. After that time, they explicitly instructed the Society not to share information with him.

6The Applicant expressed service concerns about the Worker several times, relating largely to an interaction in late 2012 or January of 2013. This involved the Worker and one of the grandchildren (“the child”). In August of 2013, the Applicant obtained court ordered access to the grandchildren. In September, another significant interaction occurred, culminating in a meeting with the Society on October 1, 2013 and the complaint to the Board.

JURISDICTION

7The Board has jurisdiction over applications where a complaint is about services sought or received from a Society. The Society’s position is that with two exceptions, the Applicant was a referral source only and was not seeking or receiving a service from them.

8The Society concedes that he was receiving a service:

• From July 16 to 31, 2012 when they assessed his home for suitability for the grandchildren to live there
• From August 28, 2013 onward when he obtained court ordered supervised access.

9The relevant time frames for the application all occur after July 31, 2012 and are:

• Nov. Dec 2012 or Jan 2013
• May 2013
• August 28, 2013
• September and October 2013

10Therefore, the August through October time frames are not in in dispute.

The following provisions in the Act are relevant:

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;

3 (1)

In this Act,

“service” means,

(a) a child development service;

(b) a child treatment service;

(c) a child welfare service;

(d) a community support service, or

(e) a youth justice service;

“child welfare service” means

(a) a residential or non-residential service including a prevention service;

(b) a service provided under Part III (Child Protection);

(c) a service provided under Part VII (Adoption), or

(d) individual or family counselling;

68.1(4). Matters for Board Review

The following matters may be reviewed by the Board under this section:

(4) Allegations that the society 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.

2(2). Duties of Service Providers

Service providers shall ensure,

That children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving

As noted by the Board in H.L.B v. Chatham-Kent Children’s Services (CFSA s.68), 2012 CFSRB 4 (2012-02-01) (para. 51)

Looking at the statute, the Society’s obligation to provide reasons in section 68.1 (4) 5 is not confined to “parents”. If that were the case, the obligation would be associated with section 2 (2) (a) of the Act, like the right to be heard. The right to reasons for decisions that affect one’s interests is broad and recognizes that there may be persons other than parents who are involved with children under the Act and whose lives may be impacted by Society decisions. For example, the Board has held that foster parents or teachers who are the subject of an investigation by a society are receiving a service and are entitled to reasons relating to the decisions made in the investigation. The Board has also held that grandparents who have sought access to their grandchildren from a society that controls access have a right to reasons.

11The Board’s decisions to date generally support the propositions that:

• a grandparent who is seeking a kin assessment or access to children is seeking a service
• grandparents, as referral sources only, are not seeking a service
• grandparents advocating on behalf of their adult children who are parents are not receiving a service
• anyone who is the subject of or part of a child welfare investigation, including grandparents is receiving a service.

12In this case, the Applicant’s status is complex. The child was living with him when the Applicant says he first raised his concerns about the Worker. He came under a bail condition that he could not be alone with his grandchildren; however, while he was not the primary caregiver, he was a caregiver in the household. The concerns in question arose from and were raised during a monthly visit of the child in an open file and the concerns related to information about the Applicant. The case notes for the meeting, call the meeting a home visit/interview and list the Applicant as one of the contacts. The Society was actively involved in questioning a child in his home and these included questions about him. In these circumstances, the Board is not prepared to say that the Applicant was simply a referral source. He was an integral part of an open child protection file as the family member in whose home the children were living. While the focus of the Society is on who was the client, persons other than clients can be receiving a service when the Society is investigating them or otherwise overseeing their lives. The Board finds that the Applicant was receiving a child welfare service at all times in question and the Board finds that it has jurisdiction to hear the matter.

MERITS

13This is an application about service concerns. As such, the Board must address the following questions:

• What were the concerns?
• When and with whom were the concerns raised?
• How did the Society respond to the concerns: did they hear the Applicant (after Aug 28, 2013) and did they provide him with reasons (throughout)?

14In this regard, the Board refers to the purpose of sections 68.1 (4) 4 and 5.

In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 38, 2012-09-21 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.

15The “right to reasons” under the Act, means a right to a meaningful explanation about decisions that affect the applicant’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, (CFSA s. 68) 2012 CFSRB 25 2012-07-11 at para.13, the Board held that:

With respect to this section of the Act, 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 complainant 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

January 2013

16The Worker visited the Applicant’s home where he was living with his son and the child, for a monthly visit/interview, at some time in late 2012 or early 2013. The Worker’s notes suggest that this happened on January 14, 2013 and that is the date the Board accepts for the meeting. She was aware that the child was taking pictures at his mother’s and asked the child directly about this. According to the Applicant, following the interview, she came out and told the Applicant and the father, in the presence of the Applicant’s partner that: the child told her that he felt like a spy. According to the Applicant and the partner, the child denied saying this and there was further dialogue in which the Worker expressed sympathy for the mother.

17The Applicant testified that it was during this conversation that he raised concerns directly with the Worker about putting words in the child’s mouth about him and that this was not professional. She responded to the effect: I don’t have to answer to you, I answer to the father. The Applicant suggested that she did have to answer to him as she was interviewing his grandchildren in his home and they live there. He testified that because of this statement and other statements she had made, he told her directly that he felt she was biased in favour of the mother and against him [and the father]. She asked him how he would determine her bias and he gave her an example. He testified that the discussion went on for some time, with him giving examples. According to the Applicant, her response was that she was not biased and it was her job to assess the adults in the matter; she was highly trained and that he didn’t need to tell her how to do her job. The meeting ended with the Applicant crying and apologizing but no information from the Worker about follow up.

18The Applicant’s partner’s evidence was consistent with that of the Applicant in terms of what the Worker and the child said. Further, she testified that the Applicant challenged the Worker for her comments and told her that she should be focused on the grandchildren, not the mother’s perspective. Her response was that she knew her job and that the Applicant didn’t need to tell her, her job. There was nothing further done regarding the allegations by the Applicant at the conclusion of the meeting.

19The Worker denied that the Applicant ever raised the service concerns directly with her at this time or at any time. Her notes do not reflect the conversation with the adults that the Applicant and his partner testified about. She did say that it was possible they had a conversation but that normally she would put it in her notes on the Society’s computer system. It was her practice to take handwritten notes first; however, she could not recall whether she had a notebook and pen on the occasion in question. She could “not recall” several aspects of the conversation put to her by the Applicant. She also denied that the Applicant raised service concerns about bias/spy comments at a later meeting (August 28); however, the evidence of the Supervisor contradicts that of the Worker. The Supervisor testified that the Applicant did raise these concerns at the August 28 meeting. The Board accepts the evidence of the Supervisor. The Board found the Worker’s testimony evasive and at times, not responsive. While she did testify over the phone, this did not account for the lack of direct answers to questions. Her testimony about the later meeting was directly contradicted by her Supervisor. Therefore, the Board accepts the evidence of the Applicant, as corroborated by his partner, for the January 2013 time frame when there were no other Society personnel present.

20The Board therefore concludes that the Applicant did raise the concerns about the spy comment and bias directly with the Worker and that her response was dismissive. She did not take any steps to address the concerns or report them to a supervisor. She did not provide the Applicant with the complaints process. She did not provide the Applicant with any reasons for taking no steps, apart from her dismissive response about knowing her job. These were not meaningful reasons for her decision to take no action about a complaint about herself.

February-May 2013

21The Applicant left messages for the Supervisor in February and March 2013. Her evidence was that she tried to call back but was unable to leave him a message on his phone, which he confirmed. On May 10, 2013, he called the Director of Service and raised his service concerns with her. He testified that he broke down during the call and that she listened. He told her that he was aware that for privacy reasons he couldn’t always get a full report back but that he still felt that nothing was being done because of bias. The Director of Service told him that he would get a call back from the Supervisor to “look after this”.

22The Director of Service testified that she called the Supervisor on May 13, 2013 and advised her of the Applicant’s concerns. The Supervisor called the Applicant back on May 13, 2013. He believes it was because of the Director of Service and not his earlier messages and he advised her of this. According to the Applicant, the Supervisor was very polite and listened to his service concerns. He provided her with the details of his bias concerns, including the spy comment and her putting words in the child’s mouth. She said she would talk to the Worker, get her side and “take it from there”. The Supervisor testified they also discussed the preference for having a third party present at interviews of the children. The Applicant’s evidence was that he did not insist on knowing the outcome but left it in their hands to do the right thing; however, his sense was that nothing was done.

23The Supervisor’s evidence was that she contacted the Worker on May 13, 2013. The Worker recalled being asked about using the language of spying with the child and denying that she had done so. She explained to her supervisor what she had asked the child and why. There was no further follow up to her knowledge. The Supervisor did not call the Applicant back. According to the Supervisor and the Worker, the next contact with the Applicant was at the end of August. The Society wrote to counsel for the father about third party interviewers but not to the Applicant.

24While the Applicant did not request or expect follow up, he was entitled to reasons for decisions affecting his interests. Because he was not told the outcome of the inquiries made of the Worker or of the decision not to follow up further, he was not provided with reasons for the decisions taken. He was left with the ongoing impression that nothing was being done. The Society did not meet its obligation to provide reasons.

August 28, 2013

25In August, the Applicant’s rights under s. 68.1 increased. As of the date of his access order, he was a parent under the Act and had not only a right to reasons, but also a right to be heard. The analysis for the Board, in these circumstances, is broadened to include more participatory considerations about being heard such as: Was the Applicant given a chance to have his say? Were steps taken as a result? Was he included in arriving at solutions and was his viewpoint considered in the decision taken? Finally, in terms of reasons, were they sufficiently detailed to meet the expectations of the Board, set out at paragraph 13 above.

26The Applicant and his partner attended a lengthy meeting with the Worker and the Supervisor on August 28, 2013, the date of the access order. The Board accepts, based on the evidence of the Applicant, his partner and the Supervisor that he raised the concerns about bias. The Worker recalls him stating she was “evasive” but nothing more. The Board prefers the evidence of the other three witnesses for the reasons set out in paragraph 17 above. The Applicant also asked the Society to write a “character letter” for the access supervision service because he was concerned that with his outstanding criminal charges, there would be difficulties in arranging access. The witnesses agree that he was told that the Society could not get involved in custody and access matters and that he debated the point with the Society, pointing to a previous letter. He saw this as a further example of bias because a former Worker had been willing to write a character reference. The Society did not indicate a willingness to re-consider once they got the letter. However, the Applicant was told to be open with the agency and that if there were still problems after the meeting with them, he could call the Supervisor. It is not clear that he articulated that their position on the letter was an example of bias, at the meeting. The Board is concerned with service complaints about the Worker and is not satisfied that the Worker’s position on the letter formed part of that complaint.

27In terms of the bias allegation and the spy comment, there was no evidence of any real discussion or resolution at the meeting that would indicate the Applicant’s perspective had been heard or acted on. Examples of this would include things such as explaining to him the steps that were taken in May, updating him on the work done by the Worker in response to his safety concerns since then (if any) and providing him with information on how investigations and home visits are conducted to take into account all perspectives and pointing out to him that the third party interviewer was part of the solution to his allegations. Further, the Society did not explain to the Applicant that he was now considered a parent under the Act and how that might affect their communication. After the grandchildren moved out the parents instructed the Society not to share information with the Applicant. It is not clear that the Applicant was informed of this explicitly. Further, it was not made clear to him the difference between his complaints about his interactions with the Society about bias/the spy comment and information about the other members of the family. Nor was his new status as a parent reconciled for him with these instructions [or] with any new information in August. The Board concludes that pat comments about confidentiality do not amount to sufficient information about the factors and circumstances to enable the Applicant to understand why and how the decisions were made.

28The Applicant had not been given any explanations about his service concerns. He raised them as an ongoing concern at the August 28 meeting and got no explanations or indication of next steps. At this point, he had a right to be heard on these issues and there was no substantive follow up or further clarification of his concerns. The meeting seems to have focussed primarily on discussions about the access centre. The Supervisor did not advise the Applicant of the Worker’s response to his allegations and seek his feedback or further suggestions. There was no discussion of the complaints process regarding the service concerns. The matter was left in limbo and contributed to further communication problems and allegations a month later.

September 27, 2013

29On Friday September 27, 2013, the Worker called the Applicant aboutgetting the grandchildren’s uniforms from him. She first spoke briefly to his partner and then to him. His partner testified that she could hear the entire conversation because the volume on the phone was loud. The Worker advised him that the grandchildren wanted their uniforms. He questioned whether it was the grandchildren or their mother and had some discussions with the Worker about logistics. Ultimately, according to the Applicant and his partner, the Worker told him that if he didn’t cooperate, she would call the children and tell them their “papa” wouldn’t give them the uniforms. The Worker hung up on the Applicant.

30The threat or perceived threat to call the grandchildren upset the Applicant greatly. Following his call to the Worker, he immediately called the Supervisor. He received a call back saying the Supervisor could meet with him on October 1, 2013. He could not get through to the Supervisor directly and therefore, he called the Director of Service. He spoke to the Director of Service who told him that:

• she had no way of contacting a Worker on the weekend
• she was confident the Worker wouldn’t follow through on a matter like this on a Friday
• she understood he had a meeting on the Monday where they could resolve the situation.

31The Applicant was not reassured and spent an anxious weekend, worrying that the Worker would call his grandchildren.

32For the Applicant, this was an urgent situation, warranting immediate action. To have heard him in terms of the urgency and timing would have meant finding a more concrete way of re-assuring him immediately. The Director of Service could have explored contacting the Worker via cell phone and if it wasn’t truly viable, told him that she had tried and left a message with instructions (presumably not to call the children if that was the supervisor’s take on the appropriate route to go). The Applicant disagrees with the reasons given and has some basis for believing that workers can be contacted on their cell phones. He expressed this belief at the time.

33In the short term, at the time when it was urgent to him, the Applicant was not heard. There was no immediate follow up or attempt to resolve the situation. The wait and see approach did not respect his need for reassurance. However, he was provided with reasons that did represent the factors taken into account by the Director of Service in making her decision not to intervene more aggressively.

34In the longer term, the Applicant was heard about his service concerns relating to the September 27, 2013 call. The Applicant had the opportunity to express his concerns at the October 1 meeting to the Supervisor. He advised that he felt the Worker was rude, disrespectful and that as a public servant, this was inappropriate. He was given a venue to express the emotional impact of the event on him and his fear for the impact on the grandchildren. The Supervisor had met with the Worker, prior to the meeting to obtain her perspective. She advised that his perception and the Worker’s were different but that the Supervisor appreciated he was upset and did not believe it was the Worker’s intention to upset him.

35While he was not asked for solutions, he was presented with a solution: the Worker would no longer deal with him. When he asked that the Worker be taken off the file altogether, the response was that the Worker had a rapport with the children and the mother and that this would therefore not change. According to the Supervisor, the Applicant then seemed satisfied with the solution.

36For the Applicant, there was no real closure of the issue of whether the allegations against the Worker were true. The Applicant’s partner was not asked what happened. Further investigation of the September 27 incident and the bias allegations might have impacted the decision to keep the Worker on the file at all. However, the Applicant appeared satisfied. More significantly, on September 27, 2013, the Director of Service had explicitly told the Applicant that he could call her if he was not satisfied with the October 1 meeting. The Society had come up with a solution that was at least in part, responsive to the Applicant’s concern: he would have a new Worker for his communications with the Society. According to the Society, this combined with the presence of a third party for interviews of the children, was responsive to the bias concerns that he had raised. The missing piece was the explanation of how and why these solutions were tied to the Applicant’s concerns. For the September 27 to October 1^st time frame, the Board finds that the Applicant was not heard initially but was given reasons for short term decisions and; was ultimately heard but not given meaningful reasons for all relevant decisions.

37In sum, the Board’s decision is mixed. The Society fulfilled some but not all of its obligations to the Applicant.

38The Applicant was not provided with reasons for ignoring his complaint directly to the Worker about alleged bias and comments about spying.

39The Applicant was heard when he raised these concerns with the supervisor on May 13, 2013, but was not told the outcome or provided with any reasons. This left the concerns lingering and unresolved for him. A step was taken regarding third party interviewees of the children but the Society never advised the Applicant that this was responsive to his concerns (rather, it appeared to be a response to father’s counsel).

40The Applicant raised bias concerns in August again, and was not heard in this regard because the issue was not followed up and from his perspective, the issues were ongoing and the Applicant had no resolution. He was not asked what if anything else he wanted to the Society to follow up on in terms of bias. No explanation was given about what had been done in the past or what might be done, moving forward.

41Then new, related and more immediate concerns arose in late September. The Applicant was not heard at the time his concerns were urgent regarding calling his grandchildren on September 27. He was given sufficient reasons for the decision taken: to wait until the meeting. He was heard subsequently when he addressed his service concerns on October 1 when an additional solution was offered and when he had an outstanding offer from the Director of Service to contact him if he was not satisfied. He was provided with reasons as to why the Worker could not be removed from the file altogether. He was not, however provided with reasons that would have helped to close the information gaps along the way, including: the Worker’s perspective on the allegations and that she had been spoken to; the link between the third party interviewees and the Applicant’s service complaints; his change in status and the impact on information sharing and the purpose of the new Worker for communications with the Applicant.

42The Board can make the following orders:

(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.

43Some of the rationale for the decisions made by the Society were explained at the hearing; however, some questions remain outstanding. The Board finds it helpful to phrase the order for reasons in a way that focusses on the information that requires clarification for the Applicant. In light of the Board’s findings and in particular, the unanswered questions about decisions taken, the Board makes the following order under s. 68.1 (7) (d) of the Act:

44The Society shall, within 20 days from the date of this decision, provide the Applicant with detailed written reasons that provide answers to the following questions about the decisions taken:

1. What is the expectation and protocol when a Worker receives a complaint about his or her conduct? Why was this process not followed by the Worker here?

2. How was the assignment of a third party individual to interview the children a response to the Applicant’s concerns about bias/the spy comment, including with reference to the timing of the decision and the expected benefits of the decision?

3. When the Applicant raised his concerns again on August 28, why was there no follow up or clarification? Why was the Applicant never told about the change in his status with the Society as a parent, as of the date of the access order and how this might affect communication? Did the Society take into account his new status in its decision making about service complaints, going forward from August 28, 2013 and if not, why not? The Society has conceded that the Applicant should have been given the complaints process information at this time, why was this not done?

4. On September 27, 2013, was the decision to contact the Worker on a Friday evening on her cell phone or via email available and if so, why was the decision made not to do so when weighed against the potential impact on the Applicant and the grandchildren?

5. Why was there no follow up with the Applicant’s partner about whether the Worker had made a threat to call the grandchildren? Would verification of the Applicant’s version of events change the Society’s response to the Worker’s involvement in the overall file and if not, why not?

CONFIDENTIALITY ORDER

45Pursuant 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 and 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.

SHEENA SCOTT

________________ Sheena Scott

Vice-Chair