JA v. Kenora Rainy River District Child and Family Services, 2018 CFSRB 3

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

JA

Applicant

-and-

Kenora Rainy River District Child and Family Services

Respondent

DECISION

Adjudicator: John F. Spekkens

Date: February 20, 2018

Citation: 2018 CFSRB 3 (s.68 CFSA)

Indexed as: JA v Kenora Rainy River District Child and Family Services

APPEARANCES

JA, Applicant

Self-represented

Kenora Rainy River District Child and Family Services, Respondent

David Elliott, Counsel

INTRODUCTION

1JA (the “Applicant”) filed an application on July 21, 2017 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 Kenora Rainy River District Child and Family Services (“the Society”).

2The Application consisted of the following complaints:

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. That the Society has not provided the Applicant with reasons why it does not support his request for removal of his name from the child abuse register;

2. That the Society has not provided the Applicant with reasons why he and his son cannot receive service from Anishinaabe Abinoojii Family Services;

3. That the Society has not provided the Applicant with reasons why the Applicant’s employer was provided detailed information prior to the completion of the investigation;

4. That the Society has not involved (heard) the Applicant in the development of his service plan. The Society has not provided the Applicant with any reasons why it will not support his name being removed from the child abuse register, although he states he has met all of the goals in the service plan.

3The Board must decide whether or not the Society heard the Applicant and whether or not the Society gave the Applicant reasons for its decisions that affected his interests.

4A Pre-Hearing Conference was held on August 30, 2017. The parties were able to resolve issues 1 and 2. There was no agreement on issues 3 and 4 and these became the subject matter for this hearing.

5The hearing was held November 8 and 9, 2017. The parties agreed that only the first sentence of issue 4 remained in dispute.

6For the reasons set out below, the Board finds the Society heard the Applicant and gave him reasons for decisions that affected his interests on issues 3 and 4 as required by section 68.1(4)5 of the Act.

BACKGROUND

7The Applicant is the father of B (“the Child”), age 7 years. He is separated from the Child’s mother. He gained full custody of the Child when the Child was 15 months old. The Society started an investigation in March 2016, and removed the Child from the Applicant’s home. This led to a period of society wardship for the Child, which ended in May of 2017 when the Child was returned to the care of the Applicant, under a 6-month supervision order.

8The Child is a member of a First Nation, which has shown a strong interest in his welfare.

9The Applicant has been employed since 2007 as a police officer in his home community. He alleges that an employee of the Society contacted the Chief of Police and provided sensitive information about the Society’s involvement and its investigation into alleged child abuse. This led to the Applicant being suspended from his employment.

THE LAW

10The relevant provisions of the Act are:

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:

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.

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; or

(f) make such other order as may be prescribed.

11In 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) 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.

ANALYSIS

Issue 3: The Society has not provided the Applicant with reasons why the Applicant’s employer was provided with detailed information prior to the completion of the investigation.

12The Applicant states he was not given reasons for the Society’s decision to share information with his employer or why this was done prior to the completion of the investigation. The Society’s position is that the Applicant was aware of the reasons for these decisions.

13In May 2013 the Society finalized a 14-page document titled “Child Abuse and Neglect Protocol between Children’s Aid Societies and Police Services” (“the Protocol”). There are 12 parties to the Protocol: the Society, the police services (including the applicant's employer), various First Nations and the Crown attorney’s office. The Protocol outlines in detail their respective roles in the investigation of allegations of child abuse. The relevant portions of the Protocol are set out below.

This Protocol is designed to provide a coordinated response in the undertaking of child protection, abuse/neglect investigations.

This Protocol will ensure that the fulfillment of mandated requirements for all investigations involving children is facilitated by:

• Providing for appropriate sharing and disclosure of information

• Emphasizing the importance of joint consultation

• Emphasizing the importance of teamwork; and

• Respecting requirements of all systems

As permitted by law, the Investigating Officer and child protection worker shall mutually notify each other of key events in the investigation and prosecution including, but not restricted to:

vii Any other event of importance that would impact on the investigation the protection of the child

Investigations Involving Police and CAS Staff

a) The Officer in Charge of the police service of jurisdiction shall be notified where a child protection worker receives a complaint of abuse involving a member (civilian or sworn) of that police service.

b) The Executive Director or Manager of Services of the Children’s Aid Society shall be notified where a police officer receives a complaint of abuse involving a child protection worker, volunteer, or other person employed by the Children’s Aid Society.

14The Protocol is explicit in addressing situations where the personnel of either the police service or the child welfare service are the subject of an investigation. It states that the officer in charge of the police services shall be notified where the Society receives a complaint of abuse involving a member of that police service. The Protocol has a similar reverse clause if the subject of the abuse complaint is a Society employee.

15As stated by the Society at the hearing, and in its letter of October 16, 2017, the reason the Society shared the information, and the timing of that sharing, regarding its concerns of abuse by the Applicant was that the Society was obligated to do so because of the Protocol that existed between the two services.

16During the hearing, the Applicant challenged the Society witness about the legality of sharing information as mandated in the Protocol, and whether it violated privacy laws that protect such personal information. The Board ruled that such a line of questioning was not within the scope of the Board’s hearing. The focus of this hearing is the actions of the Society, and the entitlement to reasons as provided for in section 68.1(4)5 in the Act. If the Applicant wishes to pursue the legality or legitimacy of the information sharing provisions of the Protocol, there are different forums where this issue may be addressed.

17The Board finds that the Applicant knew or ought to have known of the Protocol which he was responsible to work with as an employee of the police service which is a party to the Protocol. This Protocol compelled the Society to share the relevant information with the Chief, as the officer in charge of the police service. Failing that, the Society gave him its reasons in writing in its October 16, 2017 letter.

Issue 4: The Society has not involved (heard) the Applicant in the development of his service plan.

18The Applicant maintains that he was not given the opportunity to be involved in the development of his service plan. A service plan must be initiated and completed within 30 days of a child's admission into care. It must be reviewed every six months.

19The Protection Supervisor CM testified that the service plan should be completed with the family's involvement but explained that “sometimes it can’t be done that way”. This case was complex and involved multiple parties, including the First Nations band, the grandparents, previous partners of both the Applicant and his current partner, most of them represented by counsel. This led to “things being handled somewhat differently”.

20The Child was apprehended and placed in foster care on March 23, 2016. The Board reviewed five documents that were submitted in evidence, detailing the planning process for the Child and for the Applicant and his partner.

21The first document is part of the Society’s court application, after the apprehension of the Child. While it is not a co-operative and consensus-built document, it made clear what the Society was expecting from the Applicant and his partner in the Child’s best interests.

22A second document titled “Contact & Casenote” details a face-to-face meeting on March 9, 2016 between the Society’s Investigative Worker and the Applicant and his partner. It describes in great detail the escalating problems that the Applicant and his partner were experiencing in dealing with the Child.

23A third document titled “Plan of Care Recording”, was completed on April 21, 2016. The document lists the participants in the Plan of Care Meeting as the Applicant, the Child, the Children’s Services Worker, and both the foster father and the foster mother. The Applicant says he had no knowledge this document was being prepared.

24A fourth document titled “Service Plan”, dated May 20, 2016 was prepared by the worker and the supervisor. It appears to focus only on the Applicant and his partner, rather than the Child. The document sets out who will have access to the Child and when, and that adult matters will not be discussed with the Child. It also directs the Applicant to attend counselling and parent education classes. It prohibits certain forms of discipline including physical discipline, withholding of food, and locking the Child in his room or out of the home. The Applicant and his partner must not expose the children to adult conflict.

25There were difficulties in the relationship between the Society and the Applicant. In the testimony dealing with his service plan, there also was reference to the Applicant being asked not to have any further contact with the Children’s Services Worker, as a result of various areas of conflict, and to limit his contacts with the Society to the Family Services Worker.

26The Child was discharged by the Society, and in May of 2017 returned to live with the Applicant, under a Society supervision order.

27There were periods of time when the Child lived with the Applicant and the Applicant's parents. The relationship between the Applicant and his parents was tenuous, and broke down, resulting in the Child being left in the care of his grandparents. During these periods of time, the Applicant at times was hard to reach and had reduced involvement with the Child.

28There had been a finding by the Society of “extreme child abuse and neglect”. This resulted in periods of time when the Applicant was prohibited from having contact with his Child. There were other times when the relationship between the Applicant and his former partner was highly conflicted. The Society did not want the Child exposed to this sort of conflict. This was difficult for the Child, as the Child had been raised by the former partner during some of the crucial formative years of his development.

29The Board finds that there were clear and stated reasons for the limitations placed on the involvement of the Applicant in the development of the service plan for his Child and himself. In view of the finding of extreme child abuse, the first focus of the Society was to protect the Child from further abuse. These reasons and concerns, also evolved to a point where there was more involvement of the Applicant. As things now stand, the Society is optimistic that the Applicant will be fully meeting his goals over the next few months.

30The Board finds that the limitations placed on the Applicant were reasonable under the circumstances, in view of the level of abuse, and were made known to the Applicant in various discussions with him. As well, the many changes in the level of the Applicant’s involvement, and the breakdown of a few key relationships with regards to the Child’s placements, contributed to the reduced involvement of the Applicant in the planning process at that time.

DECISION

31The Board finds that the Society met its obligations under section 68.1(4)4 and 5 of the Act, and dismisses issue 3.

32The Board finds that the Society involved the Applicant in developing the plan of care, in a manner appropriate to the circumstances. The Society met its obligations under section 68.1(4)4 and 5 of the Act, and dismisses issue 4.

confidentiality order

33Pursuant 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.