G.V. v. York Region Children’s Aid Society, 2016 CFSRB 57

CHILD AND FAMILY SERVICES REVIEW BOARD

G.V.

v.

TORONTO CATHOLIC SCHOOL BOARD

REASONS FOR DECISION

Date: December 5, 2016

Citation: 2016 CFSRB 57 Indexed as: G.V. v. York Region Children’s Aid Society (CFSA s.68)

INTRODUCTION

1G.V. (“the Applicant”) 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 July 19, 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 dated September 13, 2016.

That the Society has not heard the Applicant’s 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. Request for file disclosure for a specific period;

2. Communication with workers;

3. Response to written communication.

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 2, 2016. The Board heard testimony from the Applicant and from a Society family services worker (the “worker”).

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 two children with whom he shares custody with their mother. The Society became involved with the Applicant in [date] as the result of his concerns about the children being exposed to adult issues by their mother. The Society opened a file to ongoing service because it was concerned about the level of parental conflict related to custody and access issues and the risk of emotional and mental harm to the children. The parents have been involved in an ongoing family court proceeding with respect to their custody and access issues.

6The Society and the Applicant had agreed in [date] that the Society would respond to communication from the Applicant only in regard to protection issues. The Applicant would keep a log of relevant information to be discussed in monthly meetings with the worker. He was advised to immediately raise any protection concerns with the Society. This protocol was put into place in order to better manage communication between the parties and also to ensure that issues related to custody and access that continued to be before the court were dealt with in that forum. The Applicant was encouraged to continue to use his legal counsel to deal with matters related to access in general. These and related matters were the subject of a previous application to the Board which were resolved through settlement facilitation discussions.

7The issues identified in the new application that were the subject of this proceeding relate in general to the Applicant’s allegation regarding failed communication and more specifically with regard to the Applicant’s effort to access his file.

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)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 examined the issues identified in the Pre-Hearing Report in light of the Applicant’s and worker’s submissions during the hearing. The three issues are considered together because they overlap and were interconnected in the Applicant’s submissions.

12On [date] the Applicant wrote to the worker requesting a copy of the file for the period [date] to the present date. He subsequently wrote two other letters, dated [date] to the worker and [date] to Society counsel regarding this same request. In his submission at the hearing he stated that he received disclosure of an earlier request in four to six weeks but was given to understand that the usual response time can be up to six months. He outlined in his submission the reasons why it was important for him to have disclosure of the file in a timely fashion – primarily to prevent miscommunication.

13The worker testified after receiving the Applicant’s letter she spoke with her supervisor regarding how to proceed. She phoned the Applicant on [date] and left him a voicemail message to say that she had received his [date] letter and his request for the file and that it would be processed in priority sequence. It is also noted that she asked him to call her back. On [date], she left another voicemail message to remind him of the message she left on [date] and confirming receipt of his request for disclosure. The case notes for both of these calls were submitted into evidence. She further stated that despite these messages and other contacts with the Applicant including home visits just before and after the written request, he did not raise the issue again. She clarified that the Society does not have a written policy on disclosure. However, its standard practice is to place each request into sequence and generally it takes approximately six months depending on the size of the file and amount of redacting of third party information to be done.

14A case note dated [date] and entered into evidence by the Society clearly reflected the difficulties the Applicant was having in communicating with the children’s mother as well as effectively communicating with the worker. On that date, the worker and the Applicant discussed the Applicant’s concern that the children’s mother was not following the court order. The Applicant’s behavior during this call escalated to a point where the worker had to terminate the call. The call resumed once the Applicant had calmed down and he acknowledged that he “knows it is not [the worker’s] fault; not protection concerns but [the children’s mother] is difficult to work with”. The second call also ended because the Applicant again became angry and upset and hung up.

15In a further case note dated [date] the worker discussed the issue regarding disclosure and it is noted that the Applicant stated the following when asked to elaborate on the complaint to the Board:

“[the worker] asking if there is anything [the Applicant] feels Society isn’t doing … says no…I know you are doing your job; [the worker] confirms nothing for [the worker] to follow up on…[the Applicant] says no – he knows disclosure takes up to 6 mths – has asked others who say same … knows he was just mad.”

16The Society stated that the file would be ready for the Applicant on [date] which is within the six-month timeframe originally given to the Applicant.

17In the letter dated [date] the Applicant acknowledged speaking with the worker the day before and that he felt there had been some miscommunication between them and that was the reason he was requesting the file. He made two suggestions regarding how to remedy future miscommunication. These suggestions were to either communicate in writing or to use a third party to assist them in their communications. At the end of this letter, he requested that the worker address any questions or concerns to him in writing and he provided his email address along with his mailing address.

18The Society did not provide any testimony regarding their response to the Applicant’s suggestions for resolving their communication difficulties nor did it provide a written response to his request for the file. However, as mentioned in an earlier section of these reasons, the Society and the Applicant agreed in [date] that the Society would only respond to communications from the Applicant with regard to protection concerns. Otherwise, issues would be dealt with at regular monthly meetings and through informal communication.

19It would appear that this arrangement was not working for the Applicant since it led to miscommunication for him. The Society did not express a similar view. It acted in accordance with the arrangement agreed upon in September. The evidence from the worker’s case notes and her oral testimony was clear on this point. The Board concludes with regard to the suggestions by the Applicant and his request for a written response, there was a breakdown in the agreed upon arrangement even though the reasons for the Society’s actions were consistent with this arrangement.

20The Applicant also complained that he sent two letters to the worker dated [date] and [date] both regarding issues related to his access to the children and the difficulties he was having with the children’s mother in this regard. The worker testified that she did not respond to these since they concerned matters between the Applicant and the children’s mother and on the surface did not make any specific request of the worker regarding any follow-up. The content of both of the letters related to access issues and the Society had advised the Applicant in the past to deal with these issues through his legal counsel and the court.

21The Board acknowledges that the Applicant’s suggestions regarding remedies for improving communication were not explicitly addressed by the Society. The Board also acknowledges that the Society was acting in accordance with the most recent agreed upon arrangement regarding communication with the Applicant. The Applicant’s submissions reflect that the current arrangement was not working for him. This is not about a service he has sought or received from the Society per se as it is about how the parties work together.

22The Board concludes that the Society complied with the Act with regard to hearing the Applicant’s concern about the request for disclosure and providing him with a response as to the expected timeframe as well as the reasons for it. The Board however concludes that the Society did not acknowledge that the arrangement made with the Applicant regarding communication appeared to have broken down and needs to be revisited especially in light of the fact that the file with the Society remains open. The Board strongly recommends that the Society and the Applicant meet to revisit how to best communicate with one another and to consider options such as those proposed by the Applicant and other options to achieve improved communication and prevent miscommunication.

CONCLUSION

23The Board finds that the Society, on the balance of probabilities, met its obligations to hear the concerns expressed by the Applicant and to give reasons for the decisions that it made in those instances where it had decision making authority and explanations for its actions in situations where it did not. The Society has met its obligations as required by the Act, and the Board dismisses the application.

CONFIDENTIALITY ORDER

24The 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, except with an order of the Court or the Board, as appropriate.