AT v. Catholic Children's Aid Society of Toronto, 2018 CFSRB 33

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

AT

Applicant

-and-

Catholic Children's Aid Society of Toronto

Respondent

DECISION

Adjudicator: Andrea Himel

Date: August 08, 2018

Citation: 2018 CFSRB 33

Indexed as: AT v Catholic Children's Aid Society of Toronto (s.120 CYFSA)

APPEARANCES

AT, Applicant

Self-represented

Catholic Children’s Aid Society of Toronto, Respondent

Rachel Buhler, Counsel

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 children (“the Children”), with respect to their interactions with their fathers.

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 I also heard from the Applicant’s close family friend (“Friend”), the maternal grandmother (“Grandmother”), the maternal great-aunt (“Great-aunt”) and the maternal grandfather (“Grandfather”). I heard from the current Family Services Worker (“FSW”) on behalf of the Society. The current Family Services Supervisor (“FSS”) was available but did not testify.

4For the reasons that follow, the CFSRB finds the Society met its obligations in some respects and did not meet its obligations in other respects as set out in the Act. For that reason the CFSRB orders that the Society provide written explanations to the issues identified in Schedule “A” to these reasons.

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 two children (the "Children"), a daughter who is four years old (the “Daughter”) and whose father is BW (“Father1”) and a son who is twelve years old (the “Son”) and who has a different father (“Father2”). Neither father is a party to the Application. The Applicant has concerns about Father1 in regard to sexual abuse, based on the Daughter’s behavior and statements. The Applicant has concerns about Father 2 in respect of him failing to follow through on access, which causes the son to be very disappointed and depressed. The Society has concerns about the Applicant’s mental health, her repeated allegations that Father1 is sexually abusing the Daughter and her refusal to comply with the access order made in favour of Father1.

7The Children were apprehended on November 28, 2016, as a result of statements made by the Applicant about killing herself and the children. The Ontario Court of Justice returned the Children to the Applicant on February 16, 2017, subject to terms of supervision by the Society.

8The Applicant and the Society view the CFSRB complaint and the child protection concerns through different lenses.

9The Applicant characterizes the dispute about the Daughter as one where neither the Society, nor Father1 nor the Court are hearing her concerns about repeated incidents of sexual abuse. Instead, Father1’s access has moved from supervised access, to community access to overnight access. The Applicant characterizes her complaint as it related to the Son about false promises made about access to Father2 and the impact of their unwillingness to provide financial assistance for programs and camp in a timely manner. The Applicant has concerns about both children when they were in the Society’s care. The Applicant believes that the Society has failed to hear her or to give her reasons for decisions that have affected her interests in respect of the Children, from the time that they were apprehended and until today.

10The Society characterizes this case as one where the Applicant’s mental health (including trauma/abuse) leads her to conclude that the Daughter is being sexually abused when there is no objective evidence. The Society takes the position that the repeated allegations and the Applicant’s interference with access are having a negative impact on the Daughter’s relationship with Father1. The Society takes the position that the both children were provided with appropriate care, access and financial support.

11The Society submits that it has heard the Applicant’s concerns many times and through many different avenues, including telephone calls, letters, meetings and family conferences. The Society acknowledges the Applicant’s strengths, as evidenced by the fact that the Children are well-cared for and happy. The issue, from the Society’s perspective, is that the Applicant will never agree that she has been heard unless the Society finds that the Daughter has been sexually abused by Father1, which the Society does not believe to be true. Allegations of sexual abuse have been investigated and have never been verified.

12Because none of the allegations made by the Applicant have been verified, the Society has declined to support supervised access for Father1, and has supported the increase of access, which now includes overnight access. Moreover, the Society has advised the Applicant that unless she complies with current access order and stops making allegations of sexual abuse it may support Father1’s newly submitted plan to have custody and primary residence of the Daughter. This case is currently before the Court and appears to be heading to trial.

ANALYSIS

13The 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.

14The “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.

15The 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, and must provide explanations that are sufficiently detailed that the Applicant can understand the reasons for the decisions that have been made.

The Service Concerns

16The Applicant submitted a detailed 30-page Amended Application dated July 6, 2018, setting out her concerns from December 2016 to present. The Applicant adopted the Amended Application as her evidence-in-chief, which was supplemented by oral evidence during the hearing and the testimony provided by four witnesses. The Society submitted a Response dated December 12, 2017, which was supplemented by the evidence of the FSW. At the pre-hearing which took place on February 7, 2018, the CFSRB identified areas of service concerns, which are addressed below.

The Health and Safety of the Daughter During Access Visits

17The most significant issue in the Amended Application relates to concerns about the Daughter while in the unsupervised care of Father1. The Applicant testified that after Father1 began to have unsupervised access to the Daughter (then age 2.5) in the community in late 2016/early 2017 and until now (age 4) she has observed the following: the Daughter has had nightmares before or after visits; the Daughter has sexualized behaviours; the Daughter cries, says “no daddy” and does not want to go for visits; the Daughter is fearful of public washrooms; the Daughter complains of pain and has discharge in her underwear; and, the Daughter becomes anxious just before access visits. Many of the above behaviours/statements were also observed by the Applicant’s witnesses and by another friend and shelter staff. The Applicant and her witnesses have reported these concerns to the Society. The Applicant has repeatedly requested that access between the Daughter and Father1 be supervised.

18The FSW testified that the Society has responded to the Applicant’s concerns, but the allegations have never been verified. They have had many discussions about the concerns including telephone calls, meetings and home visits. Prior to the Daughter’s apprehension in November 2016, the Applicant had taken the Daughter to a children’s hospital with a specialized unit for assessing sexual abuse and the allegations were not verified. During the period of transition from supervised to unsupervised access in late 2016/early 2017, Father1’s visits had a supervised pick up and drop off at the Society’s office in the mall. Father1 sometimes took the child to the mall but he often played with her in the Society’s playrooms. The Society observed the Daughter before and after the access and there were no concerns. In January 2018, the Regional Police conducted an investigation into alleged sexual abuse and the Daughter made no disclosures. The FSW observed (from behind a window) the interview between the detective and the Daughter. The child did not appear to be fearful of Father1, she expressed wanting to see Father1 and stated that Father1 is her best friend. The Regional Police opted not to pursue this matter, which the FSW told the Applicant.

19Once the Court ordered that Father1’s pick up and drop offs take place at the Daughter’s daycare, the FSW communicated regularly with the supervisor and the teacher who advised that they had no concerns about the Daughter before or after access visits. However, as the Applicant is no longer making the Daughter available for the Court-ordered weekend access communication with the daycare has decreased.

20The FSW also spoke with the Daughter’s doctor about a complaint of pain. However, the child could not identify where she was in pain and the Applicant was present during the check-up. The FSW testified that she believes the concerns about sexual abuse are coming from the Applicant rather than the Daughter.

21The FSW has observed that the Daughter acts differently when she overhears or is part of a discussion about Father1. The FSW does not dispute that the Daughter sometimes does not want to attend visits. However, the FSW has advised the Applicant that there are many reasons why children sometimes do not want to go for visits, and there is no objective evidence of sexual abuse.

22With respect to the nightmares, the FSW is aware that the Applicant raised these concerns with her psychologist. The psychologist’s letter dated February 2018 notes the Applicant believes that the nightmares have been caused by stress related to the Daughter's visits with Father1. However, the psychologist observed video recordings of the Daughter and it is her impression that these episodes appear to be night terrors not nightmares. The psychologist also stated that night terrors are frequent among children and that children tend to outgrow them without intervention.

23In March 2018, the Court ordered that Applicant may not retain any new medical professionals (including but not limited to doctors, counselors or psychologists) for the Daughter and must cease taking the Daughter to counseling or psychologist appointments, unless she has obtained the prior consent of Father1 and the Society, or by court order. The Society agrees with this order and does not support any further investigations, assessments or treatment the Society believes that further investigations, assessments or treatment are not in the Daughter’s best interests, and there has been no verification of sexual abuse.

24On the basis of the above, the CFSRB finds that the Applicant has been heard by the Society with respect to her concerns about the Daughter’s care while having access to Father1. The Society has repeatedly explained why it will not conduct additional investigations into the alleged sexual abuse, and why it has supported increased access rather than supervised access.

25The Society has failed to explain why it refused to be present at the times when the Daughter most often has the behaviours and/or makes statements that lead to the Applicant’s concerns. The Applicant has requested that the FSW attend at her home right after the Daughter’s return, or transport the Child home from a visit, but she has declined to do so. As the Society takes the position that no one from the Society or other third party professionals have observed these behaviours and/or hears these statements, the CRSRB orders the Society to explain why the FSW refused the Applicant’s request to conduct a home visit immediately following an access visit and why the FSW refused the Applicant’s request that she transport the child home from an access visit.

26The other area where the Society has not provided the Applicant with appropriate guidance is in respect of the steps that the Applicant should take if she has future concerns about sexual abuse. While the FSW testified that the Applicant can take the child to the family doctor, this would only make sense if the Society is prepared to follow through with reports/requests made by the doctor. There is no evidence that the Society took any steps after receiving the doctor’s letter dated April 2018. In that letter the doctor stated that she has been the family’s physician since 2010. She also wrote the Applicant’s concerns should not be dismissed and that, even though there is no clear evidence that the Daughter is being harmed, possible risk cannot be dismissed and the Daughter should be protected. Therefore, the CFSRB orders the Society to explain to the Applicant what steps she should take if she has future concerns about the Daughter when she is in the care of Father1, and how the Society intends to respond to any such reports.

Access Issues

27Following the Children’s apprehension in November 2016, there was a delay in the commencement of the Applicant’s visits and, once scheduled, the visits were set for the same day as Father1’s access. The Applicant voiced concerns about this arrangement given the history of domestic violence. The CFSRB accepts the Society heard the Applicant by explaining the need to consider the impact of the travel for access on the children (including school, drives…) when setting the schedule, and again when the Society agreed to move Father1’s access to different days.

28However, the Society has not explained the delay in making a decision respecting a birthday visit for the Son while he was in the Society’s care. The Friend testified that she had been trying for two weeks to get permission to see the Son and no one called her back. Ultimately, the Friend travelled about 5 hours by car with the mere hope of being given permission. While the visit was facilitated to take place later that day, it was evident from their testimony that the unknowns respecting the Son’s birthday caused the Applicant and the Friend unnecessary anxiety and stress. Moreover, the Friend was subsequently told by the first Family Services Supervisor (FSS) that her access requests would not be declined.

29As the Society was unable to produce the First FSS as a witness due to vacation issues, the CFSRB was unable to determine what, if any, explanation was provided to the Applicant. The CFSRB orders the Society to provide reasons for the delay in responding to the requests for birthday access to the Son.

30With respect to Father1’s increased access from the time of apprehension to present, the CFSRB accepts that the Society has explained that because sexual abuse has not been verified, given the workers’ observations and the information provided by the daycare, the Society has concluded that the access is beneficial to the Daughter and have supported increased access to Father1.

Communications about the Son’s Access Visits to Father2

31The Applicant testified that she was always supportive of access between the Son and Father2. She has been flexible about the access but unfortunately he often has not followed through. During the course of this proceeding the lawyer appointed by the Office of the Children’s Lawyer (the “OCL”) took the position that the Son wanted more access to Father2. The Applicant testified that, without her consent, the prior FSW told the Son he would spend every weekend with Father2. Unfortunately, when Father2 did not attend for access, the Son was very upset and became depressed. The Applicant complains that the Society should not have advised the Son about the access given Father2’s previous lack of follow through. She has not received an explanation why the Society opted to do so.

32The Society was unable to respond to this complaint as this issue arose prior to the current FSW being assigned to the file. The CFSRB orders the Society to explain why it was explained to the Son that he would have access every weekend, and how the Society considered Father2’s access history in making the decision to have this discussion with the Son absent consent from the Applicant.

The Applicant’s Request for Support (Financial and Third Party Referrals)

33The Applicant experienced financial distress as a result of losing her Child Tax Benefits after the Children were apprehended. When the Children were returned to her care they initially lived in a shelter and later they moved into an apartment. The Applicant asked the Society for financial assistance including: funds for children’s clothing and a bed for the Daughter; assistance for food; funds for children’s extracurricular programs and camp; and, gifts for Christmas. While the Society covered these expenses for the Children while they were in the Society’s care, they provided little financial support once the Children were returned to the Applicant. The Son was unable to enroll in swimming and camp that he requested because of the Society’s delay in assistance, and Christmas gift cards were provided at the last minute.

34The FSW testified that the Society provided assistance for camp, but that it was too late to enroll in swimming. She has explained to the Applicant of the need to work from a budget, and that the Society cannot assist with various expenses such as contact lenses. The Society has provided some financial support. Father1 agreed to buy the Daughter’s bed, which the FSW explained to the Applicant. The FSW has also explained that the Applicant can make requests for funding and she can look into what the Society is able to provide.

35The Applicant testified that she has requested assistance so that she can join programs offered by specific community organizations, as they require referrals from the Society. One such organization denied her the opportunity to join a group. The FSW explained that the community organization declined to work with the Applicant as they concluded that she was more interested in fighting the system than focusing on therapeutic work. The FSW also stated that most organizations want to hear from the parent not from the Society, and that she was prepared to conduct another meeting with the Applicant to discuss third party services.

36The CFSRB finds that the Society has appropriately responded to the Applicant’s complaints about her requests for support.

The Scheduling, Conduct and Outcomes of Meetings

37The Applicant, the Grandmother, the Friend and the Great-Aunt testified about meetings and court attendances. The Friend testified that there are two issues that arose in the meetings that she attended that have not been explained by the Society, which are as follows: (1) While the Children were in the Society’s care, what did the Applicant need to do for the Society to return them (given that the Applicant had provided a plan that included support from her family); (2) How was the Society going to address the safety concerns respecting the Daughter and her statements that she did not want to go for access visits.

38The CFSRB makes no finding in respect of item (1), as the Court returned the children on a motion within weeks of the request for a list of expectations to have the children returned voluntarily. The CFSRB’s order with respect to item (2) is addressed below.

39The Great-Aunt testified that she attended meetings in June and October 2017. She raised concerns about behaviours that she had observed including: the Daughter (then age 3) rubbing herself along a coffee table; twirling her hair and appearing nervous; and, kissing. After asking the Applicant to leave the meeting, the Great-Aunt asked to whom is the Applicant supposed to raise the concerns. The Society responded that the concerns should be addressed to it, but the Society was not intending to conduct any further investigations into alleged sexual abuse (which the Great-Aunt understood to mean that the Society did not believe the Applicant). The Society agreed to arrange play therapy for the Daughter, however this was never arranged. The CFSRB orders the Society to explain why they did not arrange play therapy, given the concerns that lead to the decision to provide this service, and the agreement to provide play therapy.

40The Grandmother testified that since moving to Toronto and into the Applicant’s home she has participated in meetings with the FSW during home visits. During one meeting the Applicant proposed that both parents participate in parenting assessments and the FSW agreed that they should both be assessed. However, when they attended at Court and Father1 refused to consent to a parenting assessment the Society declined to pursue an assessment. The Grandmother testified that it was never explained why the Society did not pursue the two assessments.

41The Applicant also testified about the concerns listed above that arose from the many meetings that took place between herself and the Society.

42The FSW was assigned to the file in April 2017, and as such only participated in meetings since that time. The FSW admitted that she never explained why the Society was not pursuing an assessment of both parents after Father1 refused to consent because they have not had any meetings since the last court date. The CFSRB orders that the Society to provide reasons why it is not seeking an assessment of both parents.

43With respect to various concerns raised by the third party witnesses at the hearing about their own observations of the Daughter’s sexualized behavior, nightmares, statements and discharge, the FSW did not explain why the Society opted not to investigate these concerns. The CFSRB orders that the Society explain why it did not investigate complaints made by third parties about the Daughter’s sexualized behavior, nightmares, statements and discharge.

The Selection of File Disclosure Provided to the Applicant from December 2016 – October 2017

44The Applicant testified that her review of the disclosure that was produced by the Society indicates that not all document were disclosed. She stated that the Society never explained why they withheld certain documentation.

45The FSW testified that she does not know why some but not all of the records were disclosed, and that some of these records may have come from another Children’s Aid Society. The CFSRB orders the Society to explain why some of the disclosure from December 2016 – October 2017 was withheld.

Changes in Society Workers and Supervisors

46The Applicant testified that she has been assigned four family services workers and two supervisors from November 2016 to present. Aside from one worker change, the Applicant stated that she received no other explanations about the changes. The FSW testified that she explained that the most recent change in workers (in April 2017) arose because of a conflict of interest. This explanation is deficient as the Applicant has no ability to discern whether the change was caused by concerns about her interactions with the Society (breakdown in her relationship with the worker), a conflict that relates to Father1 or Father2, or some other reason. The CFSRB orders the Society to provide reasons for the changes in workers and supervisors.

Closing the Society’s File

47The Applicant has repeatedly asked the Society what she needs to do for them to close their file. While both parties agreed that the simple answer is that the Court has declined the Society’s request to withdraw, the CFSRB orders the Society to explain its expectations of the Applicant to maintain the Society’s support (given the recent threats to support Father1’s plan) and the Society’s belief as to what steps need to be taken in order for the Court to permit the Society to withdraw.

DECISION

48The CFSRB concludes that the Applicant was heard and given reasons in respect of some of her complaints, and that the Society has failed to hear the Applicant or give reasons in respect of other complaints, as required under section 120(4) of the Act by the Society. Accordingly, the CFSRB orders that in accordance with section 120(7) of the Act, the Society provide responses and written reasons for decisions in respect of the issues identified in Schedule “A” within 45 days.

CONFIDENTIALITY ORDER

49Pursuant 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.

Dated at Toronto this 8^th^ day of August, 2018.

Andrea Himel

Andrea Himel

Member

Schedule “A”

The CFSRB orders that in accordance with section 120(7) of the Act, the Society provide responses and written reasons for decisions in respect of the issues identified in below within 45 days.

1. The reasons why the FSW refused the Applicant’s request that she conduct a home visit immediately following an access visit and why the FSW refused the Applicant’s request that she transport the child home from an access visit.

2. To explain to the Applicant what steps she should take if she has future concerns about the Daughter when she is in the care of Father1, and how the Society intends to respond to any such reports.

3. To provide reasons for the delay in responding to the requests for birthday access to the Son.

4. To explain why it was explained to the Son that he would have access every weekend, and how the Society considered Father2’s access history in making the decision to have this discussion with the Son absent consent from the Applicant.

5. To explain why the Society did not arrange play therapy given the concerns that lead to the decision to provide this service, and the agreement to provide play therapy.

6. To provide reasons why the Society is not seeking an assessment of both parents.

7. To explain why the Society did not investigate complaints made by third parties about the Daughter’s sexualized behaviour, nightmares, statements and discharge.

8. To explain why some of the disclosure from December 2016 – October 2017 was withheld.

9. To provide reasons for the changes in workers and supervisors.

10. To explain its expectations of the Applicant to maintain the Society’s support (given the recent threats to support Father1’s plan) and the Society’s belief as to what steps need to be taken in order for the Court to permit the Society to withdraw.