J.C. v. Simcoe Muskoka Child, Youth and Family Services, 2017 CFSRB 28

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

J.C.

Applicant

• and -

Simcoe Muskoka Child, Youth and Family Services

Respondent

REASONS FOR DECISION

Date: October 10, 2017

File Number: CA17-0187

Citation: 2017 CFSRB 28

Indexed as: J.C. v. Simcoe Muskoka Child, Youth and Family Services

(CFSA s.68)

INTRODUCTION

1This is an application under s. 68.1(4)4 and5 of the Child and Family Services Act, R.S.O. 1990 c. C.11, as amended (“Act”). The Applicant alleges safety concerns about his daughter (the "Child”) in her current placement; that the Society did not hear him or provide him with reasons for decisions affecting his interests regarding access with the Child since 2016; and a failure to communicate on the part of the Society worker responsible for services to the Child who is a crown ward.

2The Board confirmed at the outset of the hearing that the Child had applied separately for a review of her placement. Her RPAC review is scheduled for hearing by this Board in the immediate future. To avoid duplication of proceedings and on agreement with the parties the Board directed that the current placement concerns would be dealt with in that forum.

3The Board must decide whether the Society met its obligations to hear the Applicant and provide the Applicant with reasons for decisions concerning the issues he has raised.

4During the hearing into this application, the Board heard from the Applicant on his own behalf and from the “Child in Care” worker (MB) on behalf of the Society.

5For the reasons that follow, the Board finds that the both parties f ell short and must assume equal responsibilit y f or th e communication f ailures in th is matter. The Applicant was unclear and unreliable in his communication with the Society. W ithin the limitations e xp ressly placed on t hem by the Child, the Society met its obligation to hear the Applicant and to provide him with reasons for decisions pertaining to her.

THE LAW

6The relevant sections 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; and

(b) that decisions affecting the interests and rights of children and their parents are made according to clear, consistent criteria and are subject to procedural safeguards.

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;

or

(b) where the person first makes the complaint to the Society under section 68, submit the complaint to the Board before the Society’s complaint review procedure is completed

(2) If a person submits a complaint to the Board under clause (1) (b) after having brought the complaint to the Society under section 68, the Board shall give the Society notice of that fact and the Society may terminate or stay its review, as it considers appropriate.

(3) A complaint to the Board under this section shall be made in accordance with the regulations.

(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.

(5) Upon receipt of a complaint under this section, the Board shall conduct a review of the matter.

(6) Subsections 68 (7), (8) and (9) apply with necessary modification to a review of a complaint made under this section.

(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.

(8) 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;

or

(b) is subject to another decision-making process under this Act or the

Labour Relations Act, 1995.

BACKGROUND

7The Applicant is the biological father of 4 children. The Child is 15 years old. She has been in the care of the Society since 2009 and was made a crown ward in [ ]. Until

2016 she regularly visited with the Applicant in his home approximately every second weekend. In July of 2016 the visits abruptly stopped. The Applicant testified he had no understanding as to why there were no visits and there was no attempt by the Society to explain.

ANALYSIS

8Although the Applicant brought his application under sub-paragraphs 1 and 2 of s.68.1(4), the application was deemed eligible to proceed under s.68.1(4)4 and5. Accordingly, the Board has authority to determine whether the Applicant was heard and whether he was given reasons for decisions made that affected his interests, specifically:

• The Child’s placement changes since July 2016;

• The nature and outcome of investigations by the Society into the Child’s allegations against the Applicant; and

• Communication issues with the worker.

9In 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)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.

10The “right to reasons” under s.68.1(4)5 of 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, 2013 CFSRB 8, at para. 8, the Board held that:

With respect to s. 68.1(4) 5, 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 parent 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.

11Since late November 2016, the Child has been in a staffed facility some distance from the Applicant. He continues to receive sporadic telephone calls from her and she has told him of having been in several placements over the past year. Since July 2016 he has had only one visit to the Child’s placement. He acknowledged that he had never requested a visit which was denied, and that the Society had offered to arrange drivers for him to travel to the Child’s placement. Rather, he wanted the Child to visit at home as before, and was advised by the worker repeatedly that “It is not appropriate at this time.” or “(the Child) is not in a position to come down at this time.”

12The Applicant further acknowledged during his testimony that the worker and her supervisor m et wit h him af t er his writ t en c om plaint in J uly, 2017. P rior t o his c om plaint , t he wor k er had invit ed his part ic ipat ion in various planning and plac em ent m eet ings and rec om mended t hat he s peak wi t h t he Child about aut horizing her t o dis c los e inf orma tion to h im . It wa s explained that they were under the Child’s specif ic ins t ruc t ions not t o t ell him anyt hing “about her lif e”. He admitted he did not follow up on that communication with the Child.

13In August 2017, the work e r and her s upervi s or s hared wit h t he A pplic ant at a m eet ing t hat t he Child has (uns pec if ied) ongoing m ent al healt h and em ot ional is s ues , s he is ref us ing t reat m ent , and t hat t here were (uns pec if ied) Y CJ A c harges agai ns t her.

14The documentary records establish that the Child had 5 placement changes between July and November of 2016, mostly temporary placements until her present placement in November 2016. The worker’s Contact Logs establish contact with the Applicant about his daughter going AWOL from some of her placements and reporting when she was located or returned. He was invited in February 2017, along with other family members, to submit a Plan of Care for the Child (and her brothers who were also in the care of the Society at the time). Due to the Child’s express restrictions, the worker could share no details about the Child at this meeting. None of the family

members, including the Applicant, offered to plan for her.

15Detailed Contact Logs and doc um ent ar y e v i denc e f i l ed by the Society confirmed the worker’s testimony that conversations and meetings noted between the worker and the Applicant, or between the worker and the Child, had, in fact, taken place. The Applicant acknowledged the conversations with him had occurred on the recorded dates although his recollection of what he was told was vague.

16The records documented various conversations with the Applicant explaining the privacy restrictions. The more lengthy meetings and conversations on this issue occurred in August and September of 2017, after the Applicant’s written complaint to the Society. The worker’s follow-up letter to the Applicant, containing the notes he had requested from that meeting, was not delivered due to a postal code error and should be re-sent. However, there was also evidence confirming the Society’s efforts to engage him prior to his complaint.

17Both parties acknowledged that the Applicant’s work schedule makes telephone or face to face contact difficult as he travels and works very long hours. He sometimes returned calls very late or on weekends when the worker was not in a position to respond. Text messaging was more effective but he did not consistently respond to text messages from the worker attempting to schedule appointments with him.

18The worker testified that, until July 2016 there were regular scheduled visits by the Child to her father’s home. In July 2016 the Child was briefly admitted to hospital in crisis but she refused assessment and medication. She stopped taking medications which she had been on “for years” and refused to attend any further access with the Applicant. Subsequently she made allegations of sexual and physical improprieties and alcohol abuse which triggered the above-mentioned “investigations” and the cessation of access. The physical abuse and alcohol complaints were said to be current. The sexual allegations were of a historic nature and were later recanted. As stated above, none of these allegations were substantiated after investigations by child protection workers external to the Society. The investigations were conducted by the local CAS

with responsibility for the region of the Child’s placement at the time of the allegations.

19The Applicant acknowledged being aware of and advised by the investigating workers of the process and outcome of the investigations into the Child’s allegations against him and other members of his family since 2015. The worker and her supervisor assured him again in August 2017, that the allegations had not been verified. He testified and agreed that his daughter was probably unreliable in her reporting of events to him as well.

20The worker testified that she struggled with the privacy restrictions on her ability to share information with the Applicant. She said it was a difficult balancing act and neither the Child nor the Applicant were happy with her. However the Child is her client. She is almost 16 years old and is a Crown Ward who is deemed to be competent.

21On balance, the worker determined that the Child’s right to privacy outweighed the Applicant’s right to explicit reasons for various decisions taken by the Society pertaining to his daughter. The Child’s instructions were express, explicit, and ongoing. The Child is in somewhat regular telephone contact with the Applicant. The worker recommended to him that he obtain his daughter’s permission for greater disclosure. He acknowledged that he did not follow through with that recommendation.

22The worker's Contact Logs reflecting her conversations with the Child also confirm the worker’s attempts to encourage the Child to permit more open discussion with her family. The Child’s position remains unchanged to the present, including her reportedly express instructions that neither the Applicant nor his representative be permitted to attend the pending RPAC hearing.

CONCLUSION

23I find, having reviewed the documentary evidence filed by the Society in support of its case and having heard from the Applicant and the Society, that the Applicant has had an opportunity to be heard and that he was provided with reasons for the Society’s conclusions and decisions. In the normal course, the reasons were not sufficiently

detailed and meaningful for the Applicant, but they were in keeping with the Child’s express instructions.

24It is not an Order, but, in these particular circumstances, it is strongly recommended that the Society try to find a better, more reliable form of communication with the Applicant, and that it provide him with regular written updates on his daughter’s care and status while still respecting her privacy. It is important to the Applicant to know she is safe.

25The Board concludes that the Applicant was heard and given reasons as required under section 68.1(4)4 and5 of the Act by the Society. Accordingly, the application is dismissed in accordance with s. 68.1(7)(e) of the Act.

CONFIDENTIALITY ORDER

26Pursuant 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.

Michele O’Connor

Michele O’Connor

Presiding Board Member