CHILD AND FAMILY SERVICES REVIEW BOARD
A.R.
v.
sIMCOE MUSKOKA CHILD, YOUTH AND FAMILY SERVICES
REASONS FOR DECISION: WRITTEN HEARING
Indexed as: A.R. v. Simcoe Muskoka Child, Youth and Family Services (CFSA s.68)
1The Child and Family Services Review Board (the “Board”) received an application from the Applicant on January 7, 2016 regarding a complaint against Simcoe Muskoka Child, Youth and Family Services (“Society”) pursuant to section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C. 11 , as amended (the “Act”).
2On January 14, 2016, the application was found eligible under section 68.1(4)4 which relates to the Applicant’s right to be heard by the Society and section 68.1(4)5 which relates to the Applicant’s right to be given reasons for decisions that affect their interests.
3The Board received the Society’s response on January 29, 2016 and a pre-hearing was scheduled on February 22, 2016. The parties agreed to participate in settlement discussions on that date. In the course of these discussions, the Applicant requested and was granted an adjournment. A continuation of these discussions occurred on May 17, 2016. The matter did not resolve and the Board determined that it would proceed to a written hearing. The parties were informed of the Board’s decision in writing on May 19, 2016 and were invited to make any additional submissions to be considered in the review. Neither party submitted any additional materials.
4The Application relates to the Applicant’s allegations that the Society did not hear him or provide him with reasons regarding concerns about a worker assigned to his file in 2012, a request for a change in the worker and the outcome of an investigation conducted in 2012 into allegations against the Applicant and the Children’s mother. The Applicant also raised a concern regarding access to the Children, however, neither the Society nor the Board has jurisdiction to decide this matter.
5The Board finds that the Society met its obligation under section 68.1(4)4 of the Act to hear the Applicant’s concerns regarding the worker but did not meet its obligation under section 68.1(4)5. The Board also finds that the Society met its obligation under section 68.1(4)4 of the Act to hear the Applicant’s concern regarding the outcome of the investigation but did not fully meet the test required to meet its obligations under section 68.1(4)5.
BACKGROUND
6The Applicant is the father of two children and stepfather of a third child (the “Children”). He has not had custody of the Children since 2012. The Society first became involved with the family in February 2012 as the result of a referral related to allegations of domestic violence and lack of supervision of the children. As a result, the Society commenced a protection investigation on February [ ] 2012 and the allegations were verified. The Society transferred the file to ongoing protection services. The Applicant and the Children’s mother ended their relationship at that time and the mother had custody of the Children.
7A second investigation was jointly undertaken by the Society and the police in response to allegations of sexual assault made by one of the Applicant’s Children against him. The Applicant was charged and convicted of sexual assault, sexual interference and uttering threats. The Society verified risk of harm in this matter as well. The mother was deemed protective of the Children and gave her assurance that she would not facilitate unsupervised access visits between the Children and the Applicant. With that understanding the Society closed the file in June 2012. The Applicant was released from custody on November [ ] 2015.
8The Applicant’s complaint relates to the worker [ ] (the “Worker”). The Worker was assigned to the case in February 2012 and had carriage of it until the closing of the file in June 2012. The complaint also relates to the outcome of the first investigation.
ANALYSIS
9The relevant legislative provisions under the Act are:
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.
(5)
2(2). Duties of Service Providers
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.
10In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 38, 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.
11The “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, 2012 CFSRB 25 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.
12The Society acknowledged that the Applicant raised his concerns about the Worker in February 2012 and that the Worker’s supervisor reviewed the family file at the time. In the Society’s response to the Board, it stated that the supervisor refused the request on the basis that the Worker was most suited to the family for a number of reasons related to the language and cultural aspects of the family dynamic. The Applicant confirmed in his written materials that he spoke with the supervisor, shared his concerns and that she refused the request and stated that:
“…once the worker is assigned to the case, it cannot change”.
13In his written statement attached to the application, the Applicant described the Worker as “harassing, threatening, unfair, unprofessional and biased”. He also alleged that: “(….) Life screwed up after I made complaint against [the Worker]”. The written response from the Society was a statement denying these allegations about the Worker’s behavior. There was no further detail that made it clear that the supervisor’s reasons for refusing a change in worker took into account the specific concerns about the Worker raised by the Applicant. The reasons given by the Society do not indicate that the specific concerns stated by the Applicant, if raised at the time, would be considered unprofessional conduct.
14The other part of the Applicant’s complaint relates to the outcome of the investigation in 2012 against the Applicant and the Children’s mother that was the focus of the Society’s first investigation. The Applicant submitted a letter dated February [ ] 2012 from the Worker that stated that the Society had verified the allegations of domestic violence and a high level of parental conflict. An ongoing protection file was opened at the time and closed in June 2012. The Applicant also submitted a police report dated January [ ] 2012 to dispute the claim that he had choked his wife. The Society’s investigation was in response to a referral made in February 2012 regarding allegations made at that time. The letter dated February [ ] 2012 is with regard to these allegations although it references additional allegations of incidences of domestic violence including one incident in which the Applicant had been accused of choking his wife.
15The Applicant did not provide any other specific details that relate to the outcome of the first investigation other than suggesting that he disagreed with it. The Applicant did not submit any information to suggest that he raised a concern about the outcome of the investigation after the verification at the time that it was made. The Applicant’s written statements suggest that he believed that the Worker was the only person involved in the verification of the allegations. The Society did not provide in its written materials a summary of the investigation process including the decision on verification. This level of detail would assist the Applicant in understanding the Society’s reasoning behind its findings.
16In a written statement attached to the Applicant’s application, he also alleged that the Worker was responsible for the loss of access to the Children and the sexual abuse allegations that ultimately led to a criminal conviction. He raised these matters as a backdrop to his desire to have access to his children upon his release from custody. The issues of custody and access are matters that are not within the Society’s or the Board’s jurisdiction to decide.
17The Applicant raised two concerns that were within the Board’s jurisdiction to review. One of them related to the conduct of the Worker and a request for a new worker and the other related to the outcome of the first investigation.
18The concerns regarding the Worker were raised in 2012 with the Society. The information provided by both parties support the conclusion that the Society heard his concerns at the time and gave him reasons for denying the request for a change in workers. However, the Society’s reasons as stated in its response to the Board differ from the reasons that the Applicant alleged he was given at the time. It is also not clear whether the reasons provided by the Society took into account the specific concerns about the Worker that the Applicant raised at the time. Furthermore, the response provided by the Society was addressed to the Board and not the Applicant and on that basis is not sufficient to meet its obligations to the Applicant.
19The Board concludes that the Applicant disagreed with the outcome of the first investigation in February 2012 and raised this concern for the first time with the Board in 2016. The Society verified the allegations made at the time and communicated its findings in writing in 2012 to the Applicant’s wife and ultimately to the Applicant. There is no requirement that a client agree or accept the outcome of an investigation. The Board also concludes that the Applicant may not have understood the Society’s process in conducting an investigation, what information it relies upon in arriving at a finding and who is involved in the process. This level of detail would assist the Applicant to understand how and why the decision was made.
CONCLUSIONS
20The Board finds that the Society met its obligation under section 68.1(4)4 of the Act to hear the Applicant’s concerns regarding the worker but did not meet its obligation under section 68.1(4)5.
21The Board finds that the Society met its obligation under section 68.1(4)4 of the Act to hear the Applicant’s concern regarding the outcome of the investigation. However, the Board finds that the Society did not fully meet the test required to meet its obligations under section 68.1(4)5.
ORDERS
22The Board orders the Society to:
a. Provide written reasons to the Applicant for refusing his request for a change in workers based on the contents of the Society’s records. These reasons should reflect the concerns about the Worker which formed the basis for the Applicant’s request at the time, the detailed reasons for refusing the request, the manner in which the decision was communicated to the Applicant and any further details that form part of the record including relevant dates and involved participants. The Board orders that the Society provide these reasons within 30 days of receipt of this decision.
b. Provide a written summary of the Society’s process in undertaking an investigation such as the first investigation in February 2012 including the Applicant’s participation in the process, what information it relied upon in arriving at its findings and who was involved in the verification process based on the contents of the Society’s records. The written summary should reference any policies and standards that the Society relied upon in undertaking and concluding its investigation. The Board orders that the Society provide the written summary to the Applicant within 30 days of receipt of this decision.
CONFIDENTIALITY ORDER
23Pursuant 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, except with an order of the Court or the Board, as appropriate.
GAIL GONDA
Gail Gonda
Board Member
Dated at Toronto, Ontario on this 27th day of July, 2016.