EH v. York Regional Children's Aid Society, 2018 CFSRB 18

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

EH

Applicant

-and-

York Region Children's Aid Society

Respondent

DECISION

Adjudicator: Andrea Himel

Date: June 19, 2018

Citation: 2018 CFSRB 18

Indexed as: EH v York Regional Children's Aid Society (s.120 CYFSA)

APPEARANCES

EH, Applicant Self-represented

York Region Children's Aid Society, Anthony Snider, Counsel Respondent

Introduction

1This is an application under s. 68.1(4)4 of the Child and Family Services Act and continuing under s.120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1, proclaimed in force on April 30, 2018, (“Act”). The Applicant alleges that the Society did not hear her concerns regarding the welfare of her son (“the Child”), while he was in the care of his father.

2The Child and Family Services Review Board (CFSRB) must decide whether the Society met its obligations to hear the Applicant and provide the Applicant with reasons for decisions concerning the issues she has raised.

3I heard from the Applicant on her own behalf and from three professionals on behalf of the Society, including the first Intake and Assessment Worker (FIA), the second Intake and Assessment Worker (SIW) and the Intake/Family Service Supervisor (Supervisor).

4For the reasons that follow, the CFSRB finds the Society met is obligations as set out in the Act and the Application is dismissed.

The Law

5The relevant sections of the Act are as follows:

15 Service providers shall ensure,

(2) that children and young persons and their parents have an opportunity 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

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

120(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

119 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 119, 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 110, 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 119(1) as required under subsection 119(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 15(2).

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 119(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

6The Applicant is the mother of the Child, who is three years old. The Applicant and the father (who is not a party to this matter) have experienced high conflict since their separation. The father has access to the Child pursuant to a temporary Consent Court Order that has been varied by the Parenting Coordinator. Initially the access was supervised pending his attendance at a parenting program. As of December 2017, the access transitioned to unsupervised day access on Saturdays, and more recently access has increased to include two mid-week afternoon visits.

7Following the change from supervised to unsupervised access the Applicant brought forward concerns related to the father’s neglectful care of the Child during the first six Saturday visits, because the Child sustained four head injuries. The Applicant brought the Child to the emergency room at the Children’s Hospital after two of the incidents, and on one of these attendances the doctor concluded that the Child had suffered a concussion. The Applicant provided the Society with discharge summaries from the Children’s Hospital following these incidents.

8The Society is involved with this family because of the concerns raised by the Applicant, the injuries themselves, concerns by the father respecting the Applicant’s interference with his access, and the impact on the Child of the parents’ high conflict.

9The Applicant and the Society view the CFSRB complaint and the child protection concerns through different lenses. The Society characterizes this case as a high conflict custody and access dispute, which has arisen (at least in part) from different parenting styles and poor communication. The Society takes the position that the Applicant may be overprotective which has resulted in numerous concerns being brought forward, some over-exaggerated concerns, missed access to the father and repeated requests by the Applicant that the Society require the father’s access to be supervised.

10The Applicant characterizes the dispute between the parents as one of different parenting standards. In her personal and professional opinion (she is a foreign trained doctor), the repeated head injuries in a matter of weeks are serious, particularly given the Child’s young age, and warrants intervention by the Society. The services requested by the Applicant once the injuries commenced in December 2017, included: (a) a thorough investigation into the father’s care of the Child including communication with the doctors who provided medical treatment for the Child, and (b) that the Society require that the father’s access be supervised.

11The Society has refused to intervene to impose any requirement that the father’s access be supervised (except for a brief period in February 2018), citing its limited authority to interfere with a parent’s right to access and their observations that unsupervised access is beneficial to the Child. The Society takes the position that if the Applicant has concerns about the father’s access she should bring these forward to Court, although the Applicant advises that it is the Parenting Coordinator who has the jurisdiction to deal with access at this time. The Society has refused to impose any conditions on the father’s access, as it has concluded the Child is bonded to the Father, and the injuries were not intentional or neglectful.

ANALYSIS

Preliminary Matter – Jurisdiction

12At the outset of the hearing the Society challenged the CFSRB’s jurisdiction to hear this matter on the following grounds: (1) the Applicant has not complained that the Society refuses to hear her concerns; (2) the Applicant has never been prevented from voicing her concerns to the Society; (3) the complaint arises because the Applicant does not agree with the Society’s decision not to interfere with the father’s unsupervised access as set out in the Consent Court Order; and (4) the CFSRB has no jurisdiction to change or suspend the father’s access, which is really the relief that is being sought.

13The Society proposed that, if the Applicant withdrew her complaint, then the Society would provide a letter setting out the reasons for the decisions that have been made. Such a letter may have vitiated the need for a hearing if it had been provided when the concerns were raised. However, the Applicant was not prepared to withdraw her complaint, and the offer to provide a letter is not relevant to the CFSRB’s jurisdiction.

14The Applicant submits that she is not seeking to review any decision, or in particular to have the access changed. The Applicant argues that the Society failed to listen to her or to adequately respond to her concerns, which are as follows: (1) the Child was repeatedly injured while in the father’s care; (2) the Society failed to speak with the treating physician (which is against their own policies); (3) the Society made the decision not to require supervised access when there was a lack of information, and an incorrect understanding of the facts.

15The Society’s obligations are set out in P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 38, at paras.13-14, 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.

16The “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, 2013 CFSRB 8, at para. 8, the CFSRB 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.

17The issue as to whether the Applicant was heard as required by the Act and as described in the two decisions above, falls directly within the scope of the CFSRB’s jurisdiction. The obligation to hear an applicant requires the Society to do more than accept information or documentation provided by the applicant. There must be meaningful engagement, in contrast to going through the motions, which can only be assessed by conducting the hearing. Absent a hearing there is no basis conclude whether the Applicant has or has not been heard. For that reason CFSRB finds that it has the jurisdiction to hear this matter.

The Four Incidents

18The complaint relates to four head injuries sustained by the Child while in the father’s care on four Saturdays between December 23, 2017 and February 3, 2018, coupled with historical concerns articulated by the Applicant about the father’s lack of parenting skills and neglectful parenting.

19The first incident took place on December 23, 2017, and the Applicant took the Child to the Children’s Hospital. The Child was diagnosed with a hematoma, a small “bump” on the forehead, a swollen lip and a superficial abrasion on the chin. The Applicant reported the injury to the afterhours clinic and was advised to withhold access until the incident could be investigated. The Society advises it has no record of any recommendation that the Applicant withhold access.

20The FIW met with the Applicant and the maternal Grandmother on January 2, 2018, at the Applicant’s home. During this meeting the Child was returned to the Applicant following his first overnight access with the father. The FIW noted a bump, scrape and bruise on the Child’s forehead.

21On January 4, 2018 the FIW met with the father at his home, situated in another city, and did a safety check. The father informed her that the injury took place in the presence of three adults. She accepted the father’s explanation that the Child had run into a coffee table, as the injuries aligned with that type of a fall (which is different than the explanation provided to the Applicant). The FIW advised the father to fully supervise the Child, because further injuries would lead to more allegations against him.

22On January 10, 2018, the FIW called the Applicant and informed her about the safety check and her conclusions that the injury was not caused by negligence or lack of supervision. She articulated that the father needs an opportunity to develop his own parenting style (which emphasizes independence and experimentation), and that it is different than the Applicant (who takes a “helicopter” approach in which she protects the Child and minimizes injuries). The FIW was concerned about the repeated complaints raised about the father and the Applicant’s pattern of restricting the father’s access (including a missed overnight access). The Applicant did not ask for the father’s access to be supervised, access resumed and the file was closed.

23Following a referral made by the Victims Crisis Unit (VCU), the SIW Worker became involved with the family. The Applicant had contacted the VCU about concerns respecting the Child. When contacted by the SIW, the Applicant advised that the Child had reported being beat up by the father, in response to a question about whether he enjoyed the visit. The SIW advised the Applicant that these types of reports must be made immediately, rather than 6 or 7 days later as was the present case. As the Applicant was not available to meet on that day a meeting was scheduled for January 26.

24With the assistance of an interpreter, the SIW interviewed the Applicant, the maternal Grandmother and the Child. The SIW discussed the Society’s previous involvement and the Applicant’s concerns about the father’s care, including whether he had problems with alcohol or drugs. The Child made no disclosures. The SIW advised that she could not conclude what caused the bruises in the photographs provided by the Applicant, as the bruises were not recent and could have been caused anywhere. Consequently there were no grounds to stop the access.

25Given the Applicant’s concerns about the first safety check and a concern about a bed for the Child, the SIW agreed to consult her supervisor and seek permission to do another home visit.

26On February 5, 2018, the Children’s Hospital made a referral as the Child had sustained a head injury. After picking up the Child from an access visit he complained when she drove over bumps, and she observed a bruise (although the father had reported a scratch). The Child was subsequently vomiting, he was sleepy and had a headache. The Applicant took the Child to the Children’s Hospital, where she was contacted by the SIW who asked to see the Child after his release. A CAT scan was conducted and the Child was released from the hospital with a diagnosis of a concussion. The Applicant provided the discharge summary to the SIW.

27The SIW attended at the Applicant’s home on February 7, 2018, and she observed a bruise on the Child’s chin but he appeared otherwise healthy. The Applicant reported that the Child complained of his head hurting. The SIW attempted to interview the Child but he would not talk about the injury. On that day the SIW called the father and advised that his access would be suspended pending his interview although the Society would not interfere if he were able to arrange for supervised access. The father agreed.

28On February 15, 2018, the SIW attended at the father’s home and he reported that the Child had banged himself, and was treated with ice. The father did not believe that the Child had suffered a concussion and he explained that the vomiting may be have been cause by a stomach virus as the father’s girlfriend and the child care center where she was employed had experienced an outbreak of this virus. The father’s girlfriend was present when the injury was sustained and she provided the same explanation when she was interviewed privately. The SIW concluded that the injuries were consistent with the Child hitting his chin on a table. The father made complaints about the Applicant interfering with his access, and declining to contact him when the Child was taken to the Children’s Hospital as she was required to do. The SIW conducted a safety check and she had no concerns about the home or the sleeping accommodations.

29On February 16, 2018, the Applicant advised the SIW that she did not feel that it was safe for the father to have unsupervised access. The Applicant also advised the Society that the Child was displaying new neurological and regressive behaviors related to light and noise.

30In consultation with the Supervisor, the SIW and concluded that the injuries were consistent with the father’s report, there had been no disclosures by the Child and there were no grounds to stop the father’s access.

31The SIW attempted to contact the treating physician at the Children’s Hospital by phone, was placed on hold for 30 minutes and eventually hung up. The SIW was successful in her attempt to contact the family doctor who had seen the Child on the previous day. The family doctor advised that the Child could have received a concussion from bumping his chin on a table. The family doctor informed the SIW that the Child was recovering well and since he had no fever, he likely did not have the flu. The family doctor also stated that the Child could return to school and regular activities and there were no significant psychological problems. The SIW and the Supervisor were concerned that the Applicant’s report (of new neurological symptoms) contradicted the family doctor’s report (that the Child was getting better). The FIW emailed the Applicant to advise that the family doctor was of the opinion that the Child was healing well and recommended that the Child attend school that day.

32The SIW communicated with the father respecting the above and to advise that his access was no longer suspended/supervised.

33Also on February 16, 2018, the Supervisor called the Applicant to discuss her concerns the decision to revert to unsupervised access. The Supervisor testified that in complex and high conflict cases it is important to look at the history. In this case there were multiple allegations made by the Applicant about the father, and there were a few injuries. While the injuries had reasonable explanations it is still worrisome. However, none of the father’s actions supported a decision for supervised access. The Supervisor believes that this is a case of different parenting styles and one where the father may need parenting support.

34On February 22, 2018, the SIW visited with the Applicant and the Child. The SIW observed the maternal Grandmother staying in close proximity to the Child. The Applicant requested the Society require the father’s access to be supervised. The SIW testified that she explained that children suffer injuries when they explore their surroundings. It is normal for a child to get bumps and bruises. The SIW also stated that children need to make mistakes to learn. Finally, the SIW informed the Applicant as follows: (1) the file would be transferred to ongoing services; (2) this worker was leaving for vacation and the Applicant should contact the Supervisor in her absence; (3) she had spoken with the father about supervising the child diligently while recognizing that children fall down and get hurt; (4) the father should document all injuries and inform the Applicant; and (5) the family doctor advised that a child can suffer a concussion from bumping his chin.

35On March 9, 2018, the Supervisor called the Children’s Hospital and after some delay was able to obtain an email address for an attending doctor who was working at the emergency ward on February 5, 2018. The attending doctor responded by email on March 12, 2018, to suggest that she contact the supervising doctor as he was at the Children’s Hospital when the Child was brought to the emergency ward. However, the supervising doctor was on vacation.

36On March 19, 2018, the Applicant called the Supervisor and raised concerns that the Society had failed to speak with medical professionals. The Supervisor explained that the SIW had spoken with the family doctor, she had communicated with the attending doctor, and she explained the delay in communication with the supervising doctor who would be contacted following her vacation. The Supervisor also explained that in a high conflict case it is the Society’s obligation to explore both parties’ perspectives and to investigate both stories in order to find out where the truth lies. The Supervisor stated that because medical diagnoses rely on self-report, in this case by the Applicant who was not present when the injuries took place, the Society must check out both sides of the story.

37The Applicant reiterated her concerns and her request that the Society require supervised access as the Parenting Coordinator would not impose supervision absent a letter from the Society requiring same. However, the Supervisor did not believe (nor has she ever believed) that the father’s access should be supervised. Instead, the Supervisor is concerned that that Applicant and the maternal Grandmother have interfered with father’s access. The Supervisor requested that the Society be granted consent to speak with the Parenting Coordinator, and the Applicant agreed after the Society confirmed that she would not be billed for the Parenting Coordinator’s time.

38On March 27, 2018, the SIW observed a visit between the father and Child which took place at the Society’s offices after the father’s access had been expanded to include access on Tuesdays and Thursdays. The SIW observed that the Child and father were loving towards each other and the Child was very comfortable with the father.

39On May 1, 2018, the SIW spoke with the supervising doctor. The conversation was rescheduled from April 6 2018, at the doctor’s request and the Applicant was advised of the new date. The supervising doctor could not opine whether the Child vomiting on February 5, 2018, was caused by the injury or a virus. He stated that the injury he observed was not unusual for a child of that age. The SIW testified that this information supported the decision not to require supervised access.

40On May 2, 2018, a transfer meeting took place with the Applicant, the SIW, the new Family Services Worker (FSW), the maternal Grandmother, the Child, the Applicant’s friend and an interpreter. The parties discussed concerns relating to the adult conflict, custody and access, the Child’s injuries while in the father’s care, other concerns about the father’s parenting, and communication. Neither the SIW nor the Applicant made reference to the discussion between the SIW and the supervising doctor (although either party could have raised this issue).

41Most recently the Society has spoken with the Parenting Coordinator, after some delay related to arranging to cover the costs of this communication, and the father has been offered parenting support by the Society. The FSW is continuing to meet with the Applicant and the father on a monthly basis (and more often when there are concerns). I heard testimony that both parents are appreciative of the Society’s ongoing involvement.

42High conflict custody and access cases that intersect with the child protection system present a variety of complex challenges for parents and professionals. In this type of dispute the Society must obtain both parents’ perspectives when a concern arises, and looks for objective third party evidence, such as medical evidence. In this case the delay in communicating with the supervising doctor (caused in part by vacations, difficulty contacting the Children’s Hospital and problems identifying who had the best information), led the Applicant to conclude that the Society was making decisions in the absence of full information.

43I recognize the Applicant’s frustration with respect to the Society’s decision to reinstate the father’s access on February 16, 2018, when it had not obtained full disclosure from the Children’s Hospital until the discussion with the supervising doctor on May 1 and a review of the emergency room file provided on June 6. However, based on the testimony provided by the SIW and the Supervisor, the Society had sufficient information by February 16, 2018 to conclude that supervised access was not necessary nor in the Child’s interests. This conclusion was supported by the information provided to the SIW by the family doctor later that day, which was conveyed by email to the Applicant. The Society continued to attempt to communicate with the supervising doctor at the Children’s Hospital, and as of May 1, 2018, had additional support for the decision not to interfere with the access.

44On the totality of the documentary evidence filed by the parties, and having heard from the Applicant and the Society, I am satisfied the Applicant had an opportunity to be heard and that she was provided with reasons for the Society’s conclusions and decisions.

45Having said this, however, I recommend, although cannot order, the Society to take steps to avoid delay in communications with third party professionals in situations where the complaint to the Society arises in the context of a high conflict custody and access case. Custody and access cases that intersect with the child protection system are often characterized by and absence of trust and poor communication between the parents. Consequently, in intersection cases the Society’s child protection role includes an examination of each party’s allegations and perspectives, a consideration of the context of the complaint, a review of the evidence and, ultimately a decision as to what intervention, if any, is need to protect a child. The Society’s role in high conflict custody and access disputes reinforces the need for the Society to communicate with third party professionals as soon as reasonably practicable, because it is this evidence that may validate or negate the complaint and the parent’s concerns.

DECISION

46The CFSRB concludes that the Applicant was heard and given reasons as required under section 120(4) of the Act by the Society. Accordingly, the application is dismissed in accordance with section 120(7) of the Act.

CONFIDENTIALITY ORDER

47Pursuant to the CFSRB’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any CFSRB 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 CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings except with an order of the Court or the CFSRB, as appropriate.