CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
JB
Applicant
-and-
Children's Aid Society of Toronto
Respondent
DECISION
Adjudicator: Andrea Himel
Indexed as: JB v Children's Aid Society of Toronto (s.120 CYFSA)
APPEARANCES
JB, Applicant
Self-represented
Children’s Aid Society of Toronto, Respondent
Kenneth Atkinson, Counsel
Introduction
1This is an application under s.120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1, (“Act”). The Applicant alleges that the Society did not hear her concerns regarding the welfare of her child (“the Child”), with respect to her interactions with her 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 I reviewed an affidavit submitted by the Applicant. On behalf of the Society, I heard from the Intake Worker (“IW”), the Child and Youth Advocacy Center Supervisor (CYAC Supervisor), the Family Services Worker (“FSW”) and the Family Services Supervisor (“FSS”).
4For the reasons that follow, the CFSRB finds the Society met its obligations in most respects but did not meet its obligations in one area. As explanations were provided at the hearing, and in the letter dated October 1, 2018, the CFSRB orders that no further explanations or reasons need to be given by the Society.
The Law
5The relevant sections of the Act are as follows:
15 Service providers shall ensure,
(2) that child and young persons and her parents have an opportunity to be heard and represented when decisions affecting her 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 child and young persons and her 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:
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).
Allegations that the Society has failed to respond to the complainant’s complaint within the timeframe required by regulation.
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.
Allegations that the Society has failed to comply with clause 15(2).
Allegations that the Society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
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 nine years old. The father is not a party to the Application. The mother and father dated briefly and never cohabited. The Applicant has always been the Child’s primary caregiver and the father was absent from the Child’s life for extended periods of time. The Applicant has concerns about the father in regard to abuse and neglect, based on the Child’s bruises and her reports about access.
7The Applicant and the Society view the CFSRB complaint and the Child protection concerns through different lenses.
8The Applicant characterizes the dispute about the Child as one where neither the Society, nor the father nor the Court is hearing her concerns about repeated incidents of abuse and neglect. The father’s access has moved from supervised access, to community access to overnight access. 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 Child.
9The Society has no concerns about the Applicant (who has strong parenting skills and is very connected to the Child), except as they relate to her interference with the father’s access. The Society characterizes this case as one where the Applicant mistakenly believes that the Child is being abused and neglected during access visits when there is no objective evidence. The Society takes the position that the repeated allegations and the Applicant's actions are having a negative impact on the Child’s relationship the father. The FSS testified that the Applicant sees the situation from her perspective and that the conflict the Applicant feels about the father impacts her decision-making relative to the Child. The FSS also testified about the importance of the Child having a positive and healthy relationship with both parents.
10The Society submits that it has heard the Applicant’s concerns many times and through many different avenues, including emails, telephone calls (with various workers, supervisors and directors), and meetings.
11Because none of the allegations made by the Applicant have been verified, the Society has declined to intervene with respect to the father’s overnight access, which was ordered by the Court on July 26, 2017 (and upheld on appeal). The FSS testified that absent evidence of imminent risk there is no role for the Society to interfere with the father’s access. In this type of case the FSS worries about the impact of multiple interviews on the Child, torn loyalties between parents and the impact of the conflict as the Child matures and develops. The Society’s role is mediate between the parents so that the Child can have access to the father.
12The Society closed its file in early September 2018, as there are no child protection concerns. There is an ongoing domestic court case.
ANALYSIS
13The Society’s obligations are set out in P.O. v. Family and Child’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 Child’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 lengthy affidavit dated September 10, 2018. The Applicant adopted her affidavit as her evidence-in-chief, which was supplemented by oral evidence during the hearing. The Society submitted affidavits dated September 10, 2018, from each of the four witnesses, which were supplemented by oral evidence. At the Pre-hearing which took place on July 20, 2018, the CFSRB identified areas of service concerns as follows:
a. That the Society has not provided the Applicant with a sufficient opportunity to be heard in respect of her concerns about the safety of the child, during visits with the father; and,
b. That the Society has not provided the Applicant with meaningful reasons for its decision that there was no basis for verifying child protection concerns in respect of the child’s relationship with the father.
I am addressing the Applicant’s concerns as they fall into the broad categories set out below.
Physical Injuries and Concerns Respecting Sexual Abuse
17Since the commencement in September 2017 of the father’s overnight access (which takes place at the paternal grandmother’s home), the Applicant has observed various injuries on the Child’s return from access visits, and observed the Child lost considerable weight on one visit. The Applicant has reported these concerns to the Society, but is not satisfied with the investigations and conclusions that have followed.
18Immediately after the first overnight access visit a joint investigation between the police and the Society was initiated, as the Applicant reported that the Child had unexplained bruises and a scratch. The CYAC became involved as the allegations lead to police involvement. The CYAC is a community response to child abuse investigations and is a partnership between police, the Children’s Hospital, the specialized abuse and neglect unit at the Children’s Hospital, mental health supports and children’s aid societies. In this instance the IW and a specially trained officer conducted a joint investigation. When police interviewed the Child, she made no disclosures and explained that wrestling with the father or playing at school may have caused the bruises. The Child told the officer that she was excited to see her father that afternoon.
19On the same day the Applicant took the Child to the specialized abuse and neglect unit at the Children’s Hospital. The doctor concluded that the bruises fit the explanation of wrestling and that the scratch was from the Child’s bed.
20From September 2017 to May 2018 (when this Application was filed), the Applicant continued to voice concerns about the Child’s injuries on her return from access visits. She began audio taping the Child when she expressed not wanting to attend for access.
21During this period the Society heard the Applicant as follows: (1) Various meetings took place between the Applicant and the workers and the supervisor; (2) supervisors, the intake director and branch manager spoke with the Applicant about her service concerns by telephone; (3) the Child was interviewed repeatedly (at each parent’s home, at school, by medical professionals and by police); (4) the Child’s relationship with the father was observed by the IW; and (5) the father was cautioned with respect to the form of his play with the Child.
22The Society did not and does not have concerns about the Child’s care when she is on access visits with the father. However, the Society was and is concerned about the child’s exposure to adult conflict. The Child’s statements made on various audio recordings have been afforded little weight as it is unclear what she was saying or feeling given the questions being asked by the Applicant. The Society was concerned about the audio recordings.
23On October 17, 2017, the IW and the CYAC supervisor met with both parents and advised that the Society would verify custody and access conflict. During that meeting the IW and IS explained why they were declining to conduct any further interviews of the Child and their concerns about emotional harm. This meeting caused the Applicant considerable distress as the focus was not on the father’s care of the Child but on her alleged interference with his access. I accept the evidence of the FSW and FSS that they explained why their focus was on the custody and access dispute rather than on the father’s care of the Child.
24Before transferring the file to ongoing services in November 2018, the IW spoke with the school principal, who advised that he knew the Applicant well and he had met the father and not noted any concerns about him.
25As part of the move from intake to ongoing services the IW and FSW typically meet with the parent for a transfer meeting. However, the Applicant expressed concerns about the IW attending the meeting and the FSW agreed to attend alone.
26The Applicant raised concerns with the FSW about further bruises in December 2017 and January 2018, and the Child’s report of pain in her genital area. After the Applicant took the Child to a walk in clinic and then to the specialized abuse and neglect unit at the Children’s Hospital, the FSW consulted the CYAC and FSS about next steps. The FSW was informed that police declined to investigate this matter. After a delay of several days (due to illness) the FSW updated the Applicant respecting same, and asked the Applicant to attend for a meeting in February 2018.
27In April and May 2018, the Applicant emailed the FSW additional photographs of bruising and she contacted a different branch of the police (officers who are not necessarily skilled at interviewing children) to request that the Child be interviewed, after the Child reported that the father had been touching her privates. The police officer was concerned about the number of times that the Child had been interviewed. The police officer was also concerned about the Applicant’s mental health as she appeared to be fixated on the idea that the father was abusing the Child. Officers attended at the Applicant’s home and the Child did not disclose any inappropriate touching, and she advised that the father has not hurt her. Officers at CYAC subsequently interviewed the Child and she did not report anything sexual. The Applicant was warned by the CYAC about the consequences that may arise from further unfounded allegations.
28The Applicant was dissatisfied with the services she was receiving from the Society. She contacted the FSW several times and the FSS who explained the steps being taken/not being taken by the Society, because of the lack of disclosures by the child and the absence of any evidence to support any concerns respecting the father. During one telephone call the Applicant requested that the file be transferred to another child protection agency, or to another worker. The Applicant spoke with the Branch Director about her service concerns. Ultimately, the other agency declined to accept the file, but in April 2018 (two months after the initial request) the Society agreed to transfer the matter to another branch, and a new FSW and supervisor were assigned in May.
29I find that the Society heard the Applicant with respect to her service concerns and was responsive by way of emails, telephone calls, meetings and the transfer of the file to a new worker and supervisor. I accept the evidence of the FSW that she offered community supports such as counseling services. I also accept that the FSW reviewed the file with the FSS at least every two weeks, and more often when the Applicant raised concerns. As decisions were being made by the FSW in consultation with the FSS, the Applicant was informed of same.
Bathing Concerns
30In January 2018, the Applicant emailed the FSW about concerns that the child was left alone in the bath. She reported concerns that the Child was able to lock herself in the bathroom and the water in the bathtub was high.
31Due to the FSW’s vacation schedule, the response was delayed by eight days. After consulting with her supervisor the FSW advised the Applicant that this was a parenting issue, which she should raise with the father.
32The FSW testified that she spoke with the father about the allegation and had no concerns but did not share this information, as she did not have his consent to do so. However, by declining to explain to the Applicant that the matter had been investigated and there were no concerns, the Society’s response, that the Applicant should raise this directly with the father with whom there is very poor communication and no trust, was not reasonable. I find that the Society failed to hear the Applicant or provide reasons in a manner that would have enabled her to understand that there was no safety risk. However, I find that the Society provided the necessary explanations during the hearing so that nothing further is required on this point.
The February Meeting
33Following the second involvement with the CYAC and police, the FSW asked the Applicant to meet with her and the FSS three weeks later. The Applicant was concerned about the delay as she continued to have concerns about the Child’s safety. The FSW was not concerned about the Child’s safety but had requested the meeting to explain the services that the Society could provide, response times (as the Society is only open during business hours from Monday to Friday, except for emergencies) and to hear her concerns. The Applicant cancelled the meeting twice due to a specialist appointment and her grandmother’s failing health, and consequently the meeting never took place as the Society agreed to transfer the file to another branch.
34I find that there was a lost opportunity for the Society to clarify its role, temper the Applicant’s expectations and provide answers with respect to her concerns (which the Society understood related to the father’s care of the Child). While it was the Applicant who cancelled the meetings, the Society ought to have sent the Applicant a written letter explaining its position on these matters.
35Once again I find that the Society provided the necessary explanations during the hearing so that nothing further is required on this point.
The Closing of the File
36In November 2017, the Society began the discussion with the Applicant about closing the file in May or June 2018. The FSS testified that in custody and access cases where there is no evidence of imminent risk by the father she worries about the impact of the Society’s involvement, as it is stressful on the mother and the child. If there are no child protection issues, closing the file will have a more positive impact on the Child.
37In this instance, the Applicant did not want the file to close, particularly after the file was transferred in May 2018, as the child developed a good connection with the new FSW. However, in September 2018, the file was closed and the Applicant alleged that she was not provided an explanation for the reasons for this decision. At the hearing of this matter the Society the parties agreed that even though this concern falls after the date of the Application, the Society would provide a written explanation by October 1, 2018 about the closing of the file. The CFSRB finds that the Applicant has been heard in respect of the closing of the Society’s file.
DECISION
38The CFSRB concludes that the Applicant was heard and given reasons in respect of most of her complaints, except that the Society failed to hear the Applicant or give reasons in respect of the bathing issue and the closing of the file issue (which took place after the Application was submitted), as required under section 120(4) of the Act by the Society. As the explanations were provided at the hearing and in the letter dated October 1, 2018, the CFSRB orders that no further explanations or reasons need to be given by the Society.
CONFIDENTIALITY ORDER
39Pursuant to the CFSRB’s Rules of Procedure parties and her 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 4th day of October, 2018.
Andrea Himel
Andrea Himel
Member