G.V. v. York Region Children’s Aid Society, 2016 CFSRB 44

CHILD AND FAMILY SERVICES REVIEW BOARD

G.V.

v.

YORK REGION CHILDREN’S AID SOCIETY

REASONS FOR DECISION

Date: September 28, 2016

Citation: 2016 CFSRB 44

Indexed as: G.V. v. York Region Children’s Aid Society (CFSA s.68)

INTRODUCTION

1G. V. 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 York Region Children’s Aid Society (the “Society”) on February 29, 2016.

2The Application consisted of the following complaints under s.68.1(4)4 and 5 of the Act, as summarized in the Pre-Hearing Report of June 20, 2016.

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

1. The Society has a bias against the Applicant;

2. The Worker [ ] did not conduct himself in a professional manner, e.g., he violated the confidentiality of another client and failed to obtain documents for which he had the Applicant’s consent;

3. The Worker [ ] conducted herself in a concerning manner, e.g., she did not provide consistent directions to the Applicant and she did not attend at court.

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 September 8, 2016.

4For 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

5The Applicant is the father of the child [ ] (the “Child”), born in [date]. The Child lives with her mother, and has done so except for the period from [ ] to [ ], when she was in a Society foster home.

6The Society has been involved in this case since [ ].

PRELIMINARY ISSUE

Jurisdiction of the Board

7The Society challenged the jurisdiction of the Board to review this application. In support of its challenge, the Society submitted 44 pages of narrative and documentation, including copies of court records. The Society’s position is that all issues in this application are before the court, and thus not subject to review by the Board.

8The Act in section 68.1(8) deals with the issue of the Board’s role in reviewing matters that are before the court:

The Board shall not conduct a review of a complaint under this section if the subject of the complaint,

(a) is an issue that has been decided by the court or is before the court;

9The Ontario Court of Appeal clarified the scope of section 68.1(8) of the Act in Children’s Aid Society of Waterloo v D.D., 2011 ONCA 441 (“D.D.”). The Court distinguished between the core decisions that are made by the court, and collateral decisions made by a Children’s Aid Society. Examples of the former are decisions on the need for protection of a child, and decisions on wardship, custody, and access. Examples of the latter are decisions made by a Children’s Aid Society on subjects such as hearing a parent’s concerns prior to making a decision on a case, and whether the Society gave the parents reasons for its decisions that may have led to court action.

10Section 2 of the Act reads as follows:

(2) Service providers shall ensure,

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

11Section 68.1(4) of the Act reads as follows:

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

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.

12The Court of Appeal wrote, at paragraph 13 of its decision in D.D., above:

The CFSRB succinctly summarized the distinction, as it saw it, between its role and that of the court at paras. 34-35 of its reasons:

Issues of substantive child protection, custody and the granting of access are not decided by the Board and fall within the Court’s mandate. Conversely, the Court will rarely examine whether a Society took into account the views and wishes of a parent or provided them with reasons for decisions that relate to the services provided by Societies that might be linked to the steps taken by a Society with respect to an issue that is ultimately before the Court.

There may be instances in which a Court has decided an issue that might involve Society process. If the Court has made a finding in this regard, it has decided the matter and that decision is binding. There would be no point in the Board examining an issue that has been finally determined even if it was a matter more typically dealt with by the Board.

13At paragraph 42, the Court of Appeal wrote:

The court and the CFSRB are concerned with different issues. The court, of course, in engaged in a determination of the best interest of D.D.’s children in terms of where they should live in the long term. The CFSRB, in this instance is concerned with whether the CAS is carrying out its statutory mandate in terms of its dealings with D.D. in the short term, while matters are pending before the court.

14The Court of Appeal upheld the Board’s interpretation of its mandate and of its jurisdiction. At paragraph 46 the Court concluded “… the CFSRB’s decision to accept jurisdiction was correct and in accordance with its statutory mandate.”

15Given the ruling of the Court of Appeal, which clarified the respective roles of the Court and of the Board, the Board rules as follows on jurisdiction. Regarding issue 1, the essence of the Applicant’s complaint is that the Society is biased against him in that the Society restricted and then eliminated his access visits to the Child, and that the Society does not want to eventually give him custody of the Child. The evidence presented is that the current court process is actively making decisions on the issue of access, and therefore it is not the Society’s decision to grant or withhold access. Thus, issue 1 in the Applicant’s complaint is in the hands of the Court, and not the Society, and therefore the Board does not have the jurisdiction to hear issue 1. In contrast, there is no evidence that issues 2 and 3 outlined above in paragraph 2 are subjects involved in the current court process, and the Board therefore finds that it has jurisdiction to review these two matters. The Board dismisses the Society’s challenge that it lacks jurisdiction to hear issues 2 and 3, and proceeds with hearing the merits of these two issues.

16Following its ruling on jurisdiction, the Board explained in detail to the Applicant its rationale for not hearing his complaint on issue 1. The Board then proceeded to hear the merits of issues 2 and 3 in the application before it.

ANALYSIS

17In addition to the provisions of the Act set out above, the following sections of the Act are relevant to determining the merits of the application:

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,

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint;[…]

18The Board heard testimony from the Applicant and from the Society’s current Family Services Worker and the former Family Services Worker. The Board examined issues 2 and 3 listed in the Pre-Hearing Report, as follows.

Issue 2: The Worker [ ] did not conduct himself in a professional manner, e.g., he violated the confidentiality of another client and failed to obtain documents for which he had the Applicant’s consent.

19The Applicant stated that the former family service worker acted in an unprofessional way by violating the confidentiality of another client by sending to the Applicant some correspondence that dealt not with the Applicant but with another family receiving services from the Society.

20The Society responded that it had already discussed in detail this issue with the Applicant, and had given it the reasons for why this had happened. The Society acknowledged that it had sent in error some material referring to another family. As soon as the Society realized this, it contacted the Applicant and, as is customary with misdirected correspondence, told the Applicant that the material was sent in error, that it was not meant for his eyes, and asked the Applicant to destroy the material. The Society apologized to the Applicant for this error. The Society also re-iterated that there was nothing in the subject material that in any way could identify the person who was the subject of the correspondence. The Applicant did not disagree with this last comment from the Society.

21Independent of the correspondence issue, the Applicant in early 2015 complained that he was having difficulty working with [ ] who was then his family service worker. The Society heard his concerns, and responded. In August of 2015, the Society assigned a different worker to his case. The Board finds that the Society did hear the Applicant on the issues under review, and did give him reasons for its actions in dealing with this issue.

22As to the issue of obtaining clinical documents, the court has chosen to actively manage this issue, and therefore this issue is not reviewable at this hearing.

Issue 3: The Worker [ ] conducted herself in a concerning manner, e.g., she did not provide consistent directions to the Applicant and she did not attend at court.

23Much of the lack of consistency referred to by the Applicant revolved around the issue of granting access. There were a number of access visits that were given to the Applicant; these were terminated as a result of information revealed in court. The access issue is central to the court hearings, with the court making decisions on access. Therefore, this aspect of this issue is not reviewable by the Board at this hearing.

24With regards to the complaint that the worker did not attend at court, the Society acknowledged that the worker [ ] did not attend court on [date]. The Society explained that this was due to [ ] being ill that day, and therefore missing court. The Society had an alternate worker at court that day, replacing [ ]. The Board finds that the Society did hear the Applicant’s concern and did give him reasons for its actions in dealing with this issue.

Other issues not listed in the Pre-Hearing Report

25In addition to the issues listed in the Pre-Hearing Report, the Applicant also raised a number of other related issues. The Society consented to deal with them at the hearing. The Society highlighted that these were issues that came up after the date of the application to the Board, with some issues dealing with matters as recent as the last few days.

i) Why did the Society provide an ankle bracelet [ ]for the Child’s mother, and did this not show bias in favour of the mother by paying for this bracelet? The Society answered that it did not pay anything towards the cost of this bracelet.

ii) Why did the Society favour the use of [ ] on the Child’s skin, as evidenced by the fact that the [ ] fell out of the Child’s bag during one of the Applicant’s visits with the Child? The Society answered that it played no role in the issue of the [ ], and that the Child’s bag was prepared and packed by the Child’s mother, in whose care the Child has lived since [date].

iii) Why did the former worker not consider the Applicant as a primary care giver? The Society reminded the Applicant that, at the [date] Family Group Conference discussion where all relevant parties participated, including the Applicant, the decision of the group was that the Child’s mother be considered as the primary care giver, and that the Applicant would not be considered in this role at this time. This decision was made with input and the agreement of the Applicant.

iv) Why did the former family service worker bring the Child’s mother to an access visit of the father, when there was a [ ] order that the Applicant was to keep a distance from her? The Society responded by reminding that the Society had explained this situation in writing to him, as para. [ ] in the current worker’s [date] affidavit. The Society had vetted this arrangement with the probation officer, and that the probation officer had assured the family service worker such arrangement would not be a violation of the [ ] conditions.

v) Why did the Society not highlight its mental health concerns earlier, rather than later? The Society responded that the Applicant maintained that he did not have any mental health issues, a position that the Applicant repeated at the hearing. The Society also reminded the Applicant of para. [ ] in the [date] affidavit of the current family services worker, outlining the Applicant’s difficulty accepting mental health opinions with which he did not agree. The Society indicated that various reports had been requested, but did not go into this further, given that the court is currently actively involved in this issue. The court has made an order to [ ] named record holders to disclose their records on the Applicant. This issue is currently under the active direction of the court, and thus not reviewable at this hearing.

vi) The Applicant asked the Society why a new court date had not yet been set. The Society responded that it is not the Society’s role to set court dates, and that it was the role of the Trial Co-ordinator. The judge’s [date] endorsement from the most recent court hearing outlined various activities that need to occur before a next court hearing. This issue is also currently under the active direction of the court, and thus not reviewable at this hearing.

26The Board finds that the Society heard the Applicant with regards to the above six other issues and that it gave the Applicant its reasons for its actions in each of these issues.

27The Applicant also raised a number of “issues” that were merely comments, not questions as to the Society’s reasons, nor attempts to get the Society to hear his position. These included issues such as an RESP for the Child, the Ministry of Transportation activities regarding the Applicant’s driver licence, the Applicant’s complaints to the medical professional regulatory body, and his resulting difficulty in finding a doctor who will do a mental health assessment on him. The Board found them to be totally unrelated to any activity of the Society, and dismissed them.

Other Considerations

28The Board notes a few comments that were made by the Applicant. The Applicant indicated that he had no intention of changing his actions on these matters in the future.

29The Applicant made it clear that he considered much of the time spent in the hearing as a waste of time, and that he was anxious to get things done so he could leave.

30The Applicant has consistently sent copies of correspondence, primarily e-mails, to a contact in the media. This was done over the long-time objections of the Society.

31The Applicant made clear to the Board that he did not feel bound by the Board’s Order as to confidentiality of the matters discussed and emanating from this hearing.

CONCLUSION

32On the issues that were eligible for review by the Board, the Board finds that the Society did exercise its responsibility to hear the Applicant, and to give him reasons on its various decisions. These reasons were usually given in writing. They were repeated verbally to the Applicant, at the hearing. As well, the Board notes that the Society, on a voluntary basis, agreed to a variety of issues, beyond those listed in the Pre-Hearing Report. On these issues as well, reasons had been given prior to the hearing, but the Society again explained its reasons at the hearing. The Board notes that the Applicant disagrees with most of the Society’s reasons, but that does not negate that the Society met its statutory obligations under sections 68.1(4)4 and 5.

33For the reasons above, and consistent with section 68.1(7)(e) of the Act, the Board dismisses the complaint.

CONFIDENTIALITY ORDER

34Pursuant 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 Board or the Court, as appropriate.