S.L. v. Halton Children’s Aid Society, 2015 CFSRB 06

CHILD AND FAMILY SERVICES REVIEW BOARD

S.L. v. Halton Children’s Aid Society

REASONS FOR DECISION

Date: February 5, 2015

Citation: 2015 CFSRB 06

Indexed as: S.L. v. Halton Children’s Aid Society (CFSA s.68)

INTRODUCTION

1S. L. (the “Applicant”) filed an application on October 1, 2014 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 Halton Children’s Aid Society (the “Society”).

2The Application consisted of the following complaints under s.68.1(4) 4 and 5 of the Act, as summarized in the December 23, 2014 report on the Pre-Hearing Conference held on November 28, 2014.

“That the Society has not heard his service concerns or heard him when decisions were made and has not provided him with reasons for decisions that affected his interests, regarding the following:

1. The alleged illegality of detention of his son, [name], at school on April 24, 2014;

2. Inconsistencies in the letter received from [supervisor’s name] dated July 31, 2014;

3. Concerns regarding alleged distortions in the Society’s affidavit dated July 31, 2014, and other letters and meetings; and.

4. Concerns regarding the Society’s mailing of a letter to the Applicant in July 2014 concerning the Child Abuse Registry.”

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 January 15 and 16, 2015.

4A number of issues related to the four complaints above were referred to another process for resolution.

5For the reasons set out below the Board finds that the Society did hear the Applicant’s concerns as required by section 2(2)a of the Act, and that the Society did 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

6The Applicant expressed concerns about the Society’s interactions with his child, a son born in [ ], 2005. The child lives with both his parents.

7The Society has been involved with the family since February 10, 2014 after the child reported that his father had scratched him on the back with a fork. Allegedly this resulted from a dispute at dinner over the child’s refusal to eat his mushrooms. Subsequently, on March 24, 2014 there were further allegations that the child had scratch marks on his neck, with the child indicating the father had tried to choke him. One month later, there was a third incident in which the child was reported at school to have two red imprints on his shoulders, resembling hand imprints. Each of these incidents was investigated by the Society, and these interactions with the child and with the Applicant are what led the Applicant to complain about the Society’s involvement with his family.

ANALYSIS

8The 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.

9In 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.

10To 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.

11The Board heard testimony from the Applicant and from the Society’s Child Protection Worker (the “Worker”) at the hearing. The Board examined in detail the four issues listed in the Pre-Hearing Report, as follows.

12Before looking at the next complaints, a few observations about the level of communication between the Society and the Applicant are warranted. Shortly after the worker’s interview with the child at school, the Applicant requested a meeting with relevant Society staff. The meeting was arranged for May 1, 2014 and was to occur at the Society’s office, involving the Applicant and his spouse, and the worker and his supervisor. In the written communication to set up the meeting, the Applicant had made reference to “auditing” the meeting. The Applicant, upon arriving at the meeting, proceeded to arrange to audio-record the session. The Society objected, based on its policy that it does not allow its staff to be audio-recorded. In discussion before the Board, it was clear that the phrase “auditing” that the Applicant used was not interpreted by the Society as meaning audio-recording the session. Upon the Society’s refusal to continue the meeting if it was going to be recorded, the Applicant and his spouse left the meeting. The Applicant said that all future meetings would be audio-recorded. In view of the Society’s position on audio-recording, the Applicant insisted that any and all future communication occur only by e-mail. No further meetings occurred, and only the occasional very brief telephone conversation may have occurred. Because of the Applicant’s restriction as to the only method by which he would communicate, the Society felt very limited in communicating meaningfully with the Applicant and his spouse regarding their concerns about their treatment of the child, or about any other issues that needed discussion. This insistence on only corresponding through e-mail severely hampered the communication between the parties, and resulted in many relatively small issues being brought to the Board at the hearing.

13As well, in the discussion on issues 2 and 3, the Applicant on numerous occasions challenged the accuracy of the Society’s files, and its various written documents and notes. The Board pointed out that the legislation provides that complaints about inaccuracies in the file can only be made to the Board after there has been an attempt at resolution through the Society’s Internal Complaint Review Procedure (the “ICRP”). Therefore, in the discussion on complaints 2 and 3, a large number of issues were identified as being deferred to an ICRP should the Applicant wish to pursue them.

14The Society proposed that it may be beneficial for the Applicant, and his spouse if he so chooses, and the worker and his supervisor to meet even before a formal ICRP is held, in order to review the allegations of inaccuracies. There clearly may be some issues of substance that need resolution. However, it also appears that many of the specific “inaccuracies” in the file and in the correspondence are based on the Applicant’s observation that the Society, at different times, has used a particular word or phrase that is not exactly the same word or phrase as the Society may have used at a different time. This is what the Applicant often referred to as the “inconsistencies” in Complaint 2.

Complaint 1: The alleged illegality of detention of his son, [name], at school on April 24, 2014.

15The Applicant testified that the Worker had significant contact with his son on April 24, 2014 at his son’s school. The worker met with the child at school without the Applicant being present. There had also been previous contacts between the child and the worker, when earlier allegations had been made about visible marks remaining on the child’s body.

16The Applicant had concerns with regards to the time that the worker spent with the child at school, specifically that the worker saw his son at school, without the child’s parent being present or being given prior notice of the interview. The worker’s rationale was that he did not want the parents to influence or “coach” the child as to what to say or not say. The Board finds that the Worker’s decision to interview the Child, and to minimize the risk of either parent trying to influence him prior to this visit, was reasonable under the circumstances in this situation where the child was making direct allegations about abuse at the hands of his father.

17At no time was any evidence presented by the Applicant that the child was “illegally detained” at school by the worker.

18The Board informed the Applicant that, if he felt that there was an illegal aspect to what the Applicant referred to as a “detention” of the child by the worker, then the proper authorities for receiving such a complaint would be the police. The Board has no authority to investigate any such allegation.

19Consequently, the Board dismissed this complaint. The various other issues relating to the school interview, referred to above, were related to and were part of the other three complaints, and it was agreed that they would be reviewed under the next three complaints.

20The Society proposed, and the Applicant accepted, three possible means for the Applicant to deal with these inaccuracies and inconsistencies. First, it proposed the informal meeting with the supervisor and worker. Second, if issues did not get resolved, it proposed the ICRP. Third, it proposed that, if required, the Applicant could submit a “Notice of Disagreement”, documenting any still-unresolved issues, and that this Notice would be included in the file.

Complaint 2: Inconsistencies in the letter received from [supervisor’s name] dated July 31, 2014.

21This complaint refers to a lengthy letter dated July 31, 2014 from the worker’s supervisor in response to a lengthy letter dated July 24, 2014 that the Applicant had sent to the Society. The Applicant had raised some 12 issues in the letter of July 31, 2014. Each of these issues was reviewed at the hearing. The Society responded and explained its position on the various issues that were raised by the Applicant. The Applicant received and accepted these explanations, and after a productive discussion and dialogue about the contents of this letter, it was agreed by both parties that the issues raised and responded to in both letters were addressed in a satisfactory manner, and that the issues in this complaint had become irrelevant and required no further action from either party.

Complaint 3: Concerns regarding alleged distortions in the Society’s affidavit dated July 31, 2014, and other letters and meetings.

22The worker swore an affidavit dated July 28, 2014. The Applicant complained that there were a number of issues with this affidavit that distorted the situation with regards to the allegations of abuse against him by the Society.

23The police services had been involved in the investigation of possible abuse, in co-operation with the Society, as per the protocol that exists between the police and the Society for such investigations. At the time of the affidavit, the Applicant had moved out of the Society’s jurisdiction, and into the jurisdiction of a neighbouring Children’s Aid Society. The affidavit was made for the latter Children’s Aid Society, because the Society had decided to commence a Child Protection Application seeking a supervision order. The Society felt that it was critical, for the protection of the child, that the neighbouring Children’s Aid Society be made aware of the position of the Society, and its planned action in court, prior to the family’s move out of the Society’s jurisdiction. After the investigation was concluded, the Society wrote the Applicant and indicated that it “had verified that you used inappropriate discipline with your son, causing injury on several occasions in a short period of time.” This finding was communicated to the Applicant in the previously-referenced letter of July 17, 2014 from the Society to the Applicant. This letter also referred to the family’s recent move, and informed the Applicant that all of his information had been forwarded to the neighbouring Children’s Aid Society. It also communicated that the Society had now closed its file on the family.

24The Board heard evidence that the police had determined that charges would not be laid against the Applicant for any inappropriate discipline that may have left marks on the child’s back and shoulders.

25The Applicant objected to the use of the phrase “inappropriate discipline”, and suggested that the word “restraint” would have been more appropriate. His reason was that his child is at times hyperactive, and at such times the Applicant needs to apply restraints to his son, and this would possibly have left marks as had been the subject of allegations by the son. The worker explained that the phrase he used to describe the marks is one that comes from the provincial guidelines (the “Eligibility Spectrum”) on classifying marks that may be left on a child.

26The Applicant challenged the Society as to why it had not included in its referral material and in its affidavit any reference to the fact that the police had decided not to lay charges. He alleged that the absence of that information to the neighbouring Children’s Aid Society distorted the conclusions of the investigation.

27The worker acknowledged that this police report had not been referred to in the affidavit. He did distinguish between the varying thresholds used by the Society and by the police. His stated reason for not including the affidavit was that he saw no reason why the police report needed to be included. The worker explained that the Society determines whether inappropriate or abusive actions occurred against the child, whereas the police determine whether any criminal activity had occurred. These two standards are not the same. By the time of the transfer, the police conclusion was that no criminal charges would be laid. The Society on three separate occasions had investigated allegations by the child. The Society’s conclusion was that it had verified that inappropriate discipline had been used, causing injury to the child on these three occasions. The Society indicated it had a responsibility to share with the Children’s Aid Society in the new jurisdiction the results of its investigation conducted under the Act.

28The Applicant wondered why the worker had included a picture of the child’s bruises with the report to the neighbouring Children’s Aid Society. He wanted to know why these pictures were included whereas the police report was not included. The worker gave the Applicant the reason that the picture was information that the Society took into consideration in its investigation, and was a part of what lead the Society to come to its conclusions as to the allegations made by the child.

29The Applicant also asked about the process of the Society making decisions on whether or not to include a person’s name on the Child Abuse Registry. The worker explained to the Applicant that such a decision is made by a small committee within the Society which reviews each case where such a decision is required. The worker also explained that the decision was made that the circumstances in the Applicant’s case did not require a referral to the Child Abuse Registry, principally because the level of harm to the child was not the result of an intentional action to cause harm, but rather an unanticipated negative result of a discipline measure. As well, there was not a pattern of repeated injuries to the child. If such a pattern existed, it would be a strong indication for a referral to the Registry. The worker explained that the committee reviews decisions according to fixed criteria. The Applicant requested of the worker a listing of those criteria. The Society agreed to share these criteria with the Applicant, and will supply him with a letter outlining the criteria.

Complaint 4: Concerns regarding the Society’s mailing of a letter to the Applicant in July 2014 concerning the Child Abuse Registry.

30The Applicant raised a number of issues that concerned him regarding the Society’s letter dated July 17, 2014 advising him that the Society had decided not to place his name on the provincial Child Abuse Registry.

31The Applicant had been told on July 7, 2014 that the worker had forwarded the letter to the Applicant. The Applicant wondered how the letter, supposedly sent out on July 7, could be dated July 17. The Society sent a lengthy letter dated July 31, 2014 to the Applicant, dealing with a number of issues that the Applicant had raised over a period of time. The July 31, 2014 letter gave a very specific and detailed explanation of the discrepancy in the dates, namely that a copy of the first letter appeared to have gotten lost, and that the administrative staff who re-wrote the letter the second time put the date of when this was done, namely, after the time that the worker had said it was sent by July 7, 2014. The explanation was thorough, detailed, and had been received in writing by the Applicant prior to his application to the Board.

32In view of the fact that the Society had given an explanation some two months ago, the Board dismisses this aspect of the complaint.

33The Applicant also complained about his address being wrongly spelled on the July 17, 2014 letter. The Applicant stated that the name of his street had been incorrectly spelled. The name of his street is a common name, which has two possible spellings in common usage. The last three letters of the street name were in a form that is different than the actual correct last three letters of his street. There was agreement that the postal code for the Applicant’s address was correct. No evidence was presented that the letter had been incorrectly received by someone other than the Applicant. As well, no evidence was presented that this error led to any delay in the Applicant receiving this correspondence from the Society. The Society acknowledged the incorrect spelling of the Applicant’s street name, and corrected its records for future correspondence.

CONCLUSION

34The Board finds that the Society did exercise its responsibility to hear the Applicant, and to give him reasons on its decision to make or to not make certain decisions. In certain situations, notably the complaint about inaccuracies and inconsistencies in the Society’s correspondence and its record, the Society offered a number of remedies to the Applicant. These included a meeting with the worker and Supervisor, a formal ICRP, or the Applicant filing a Notice of Disagreement.

ORDERS

35The Board is not mandated to deal with the Applicant’s complaint about inaccuracies or inconsistencies in the Society’s records. As referred to above, these matters are properly brought forward to an ICRP.

36With regards to those complaints that are within the Board’s mandate, the Board finds that the Society did hear the Applicant’s concerns, and did give him explanations and reasons for its decisions, and the Board, therefore, orders that these complaints be dismissed.

CONFIDENTIALITY ORDER

37The 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 Board Member