EB v. Brant Family and Children’s Services, 2019 CFSRB 36

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

EB Applicant

-and-

Brant Family and Children’s Services Respondent

DECISION

Adjudicator: John F. Spekkens Date: July 24, 2019 Citation: 2019 CFSRB 36 Indexed As: EB v Brant Family and Children’s Services (CYFSA s. 120)

APPEARANCES

EB, Applicant No one appearing

Brant Family and Children’s Services Respondent Sarah Robertson, Representative

INTRODUCTION

1The Applicant and the Brant Family and Children’s Services (the “Society”) entered into a Settlement Agreement (the “Agreement”) during a mediation held on May 9, 2019, providing for a full settlement of all issues raised in the Application, dated January 2, 2019 to the Child and Family Services Review Board (the “CFSRB”).

2The Agreement contained seven Terms, expressed as questions to the Society, which sought reasons and/or explanations from the Society. The parties agreed to a compliance date of June 7, 2019 and a non-compliance date of June 14, 2019.

3The Society sent the Applicant a letter dated May 27, 2019, responding to the issues raised in the Agreement.

4On June 10, 2019, the Applicant sent an e-mail to the CFSRB, indicating that she did not accept the Society’s responses in its letter. The e-mail listed a number of complaints of the Applicant about the Society’s letter:

• “it is quite upsetting that they continue to lie”;
• “During a court hearing in July of 2017[…] the reasons were based on lies and incorrect information […]”;
• “I understand [the children] were not in the care of [the Society], however, they prevented me from seeing them based on many lies”;
• “I wish to have them review the decision to allow me to visit my granddaughters and hope that the Review Board can insist on this happening.”

5In accordance with the CFSRB’s procedures, when an allegation of non-compliance has been made, the CFSRB held a hearing by Teleconference (“the Teleconference”) on July 19, 2019 to determine whether the Society had complied with the Agreement.

6The Applicant did not join the Teleconference on July 19, 2019 the purpose of which was to consider her allegation that the Society did not meet its obligations set out in the Settlement Agreement at a mediation session held earlier. There was no request reschedule before me.

THE NON-COMPLIANCE TELECONFERENCE OF JULY 19, 2019

7Clear notice was given of the Teleconference. The Case Processing Officer verbally arranged the Teleconference, and there was agreement between the Applicant, the Society, and the Case Processing Officer that the Teleconference would occur on July 19, 2019, with a 10:00 AM scheduled starting time.

8The Case Processing Officer submitted a written “Notice of Compliance Teleconference”, stating the date, the time, and the call-in number and the Conference ID number. This Notice was dated July 17, 2019, and was e-mailed to the Applicant and the Respondent Society.

9The “Notice of Compliance Teleconference” asked the parties to call in to the Teleconference 5 minutes before the scheduled time.

10The “Notice of Compliance Teleconference” also contained the following paragraph:

All parties are expected to attend and participate in the teleconference. You may attend with your legal representative and/or a support person. If a party does not attend at the teleconference, the CFSRB may proceed in their absence. If the applicant does not attend, the file may be closed.” [emphasis added]

11Three staff of the Respondent Society and I were on the Teleconference by the starting time.

12When the Applicant had not joined the Teleconference by 10:15, the Case Processing Officer made three telephone calls to the Applicant’s home, and left one message.

13At 10:30, the Applicant still had not joined the Teleconference. At that point I ended the Teleconference.

14Shortly thereafter, the Applicant was on the telephone to the Case Processing Officer, indicating that she was visiting family (about an hour’s drive from Toronto), and that she was “on central time”. The latter comment was never explained. No extraordinary circumstances were given by the Applicant to justify her failing to join at the appointed time the Teleconference which was established specifically at her request.

FINDINGS

15I find that proper notice was given to both the Applicant and to the Respondent Society.

16After just over 30 minutes of waiting for the Applicant to join the Teleconference, she had not done so.

17The Notice of Compliance Teleconference, quoted above, was clear that attendance of the applicant was required, and that failure to attend may result in the file being closed.

18Subsequently, in conversation with the Case Processing Officer, no significant or compelling reason was given by the Applicant for having missed the Teleconference, which might have warranted consideration for re-scheduling another Teleconference.

19Rule A7.1 of the Rules of Procedure of the CFSRB requires all persons participating in proceedings to “[…] act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.” This includes treating other peoples’ time commitments with respect. For this reason, I did not reschedule the Teleconference and determined the non-compliance allegation on the basis of written materials before me.

In order to make my determination, I used the two written communications received from the parties, namely the Society’s May 27, 2019 written response to the seven issues raised in the Settlement Agreement, and the information in the Applicant’s June 10, 2019 one-page written allegation of Society non-compliance.

ANALYSIS

The Law

20The CFSRB determined that the Application was eligible to proceed under section 120(4) 5 of the Act.

21The Act outlines the Society’s obligations and the mandate of the CFSRB. Section 120 reads as follows:

(4) The following may be reviewed by the Board under this section:

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

(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

22The Act does not require or permit the CFSRB to make a determination as to the clinical merits of a decision made by the Society in the given situation under review by the CFSRB and for which the Society is giving its reasons under this section of the Act. This limitation on the CFSRB mandate is explained to every applicant at mediation, and was re-iterated during the Teleconference.

23In a situation of alleged non-compliance, an applicant’s statement of disagreement or dissatisfaction with the reasons given by the Society does not negate or invalidate the fact that the Society did give reasons as required by the Act.

24I reviewed the written material supplied by the parties related to each term of the Agreement.

Terms of the Agreement

Term 1 of the Agreement reads as follows:

The Applicant states that she applied for an I.C.R.P. in early 2018 but that it was never set up; what was the reason for the I.C.R.P. not being established?

25The Society’s response is that the reason for the I.C.R.P. not being established by the Society is that the Applicant did not make a verbal or written request for an I.C.R.P.

26I note that Ontario Regulation 494/06, dealing with an individual’s complaint to a Society, states that such a complaint must be made in writing.

27The Applicant’s e-mail alleging non-compliance did not deal with this issue.

28With regard to the content of its response to Term 1, I find that the Society has given its reason for not establishing an I.C.R.P.

Term 2 of the Agreement reads as follows:

Gifts for the children (in a garbage bag) were left with the substitute worker S.M; did these ever reach the children?

29The Society’s response to Term 2 was that the Society did pass on to the children’s custodial parent the gifts left for the children.

30The Applicant’s e-mail specifically reminded the Society that the Applicant had requested that the children be given the gifts in question.

31With regard to the Society’s response to Term 2, I find that the Society answered the Applicant’s question, and thus has met its commitments as made in the Agreement.

Term 3 of the Agreement reads as follows:

The Applicant submitted (Summer of 2017) a drug & alcohol test, a police criminal check, and a plan of care; were these three items considered by the Society in any decisions where the Society played a role in terms of the Applicant having access visits with the children?

32The Society’s response to Term 3 was that the original documents referred to were not requested or required by the Society in order for the Applicant to have access to her grandchildren. The Society points out that the children were never in the care and custody of the Society and therefore the Society has no decision-making authority over who has access to the children.

33With regard to the content of its response to Term 3, I find that the Society has explained fully the issue of access, and who has decision-making powers in a situation where the children were never in the care and custody of the Society. Thus, the Society met its commitments as made in the Agreement.

Term 4 of the Agreement reads as follows:

The youngest child stays with the mother of C for a couple of days at a time; why can the Applicant not get the same consideration for the older 2 children?

34This Term raises an issue that is very similar to the previous Term. The Society wrote that the children were always in the care of the custodial parent and that the decision-making authority for issues like access belongs to the custodial parent.

35The Society has in the past suggested to the Applicant that she could make an access request by submitting a CLRA court application, but the Society notes that this suggestion was not followed through by the Applicant.

36With regard to the content of its response to Term 4, the Society explained the issue fully, and proposed a constructive recommendation on the proper method to achieve her goal. I find that the Society has met its obligations under the Agreement.

Term 5 of the Agreement reads as follows:

The Application has numerous instances of the Society not responding to the Applicant’s contacts to the Society; what was the Society’s reason for seemingly excluding the children’s grandmother from involvement with the children?

37The Society writes that the Society had 16 interactions with the Applicant between April 20, 2017 and December 7, 2018. In addition, the Society asked the Applicant to provide the Society with a contact number; however, the Applicant responded that her cell phone did not work in Ontario, and therefore she could not leave a telephone contact number.

38With regard to Term 3, Term 4 and Term 5, the Applicant in her e-mail wrote

I understand [3 children’s names] were not in the care of [the Society], however, they prevented me from seeing them based on many lies. […]

I wish to have them review the decision to allow me to visit my granddaughters and hope that the Review Board can insist on this happening.

39In the initial mediation session of May 9, 2019, it was pointed out on a number of occasions that the CFSRB does not have the authority, under section 120 of the Act to issue an order such as she is requesting.

40With regard to the content of its response to Term 5, I find that the Society has explained in a comprehensive way the legal situation regarding questions of access, and thus has met its commitments as made in the Agreement.

Term 6 of the Agreement reads as follows:

The Applicant received her son’s legal guardianship document on April 22, 2017 when it was given to a staff substituting for the regular F.S.W.; why did the Applicant not hear anything from the Society as follow up to her submitted document?

41The Society’s response to Term 6 was to advise the Applicant to seek legal advice regarding her claim of guardianship over her grandchildren. The Society again stated the reason as being that the Society never had care or custody of the children, and therefore was not in any position to make decisions on guardianship.

42With regard to the content of its response to Term 6, I find that the Society has met its commitments as made in the Agreement.

Term 7 of the Agreement reads as follows:

The Applicant on numerous occasions made reference to V’s parenting abilities and references to the presence and actions of her new partner J.M. (e.g. who sleeps where, Facebook postings); did the Society consider these references as a formal “referral”, and if so, what action did the Society take in response to these referrals?

43The Society response dealt with the two components of Term 7. The Society wrote that it considers all reported concerns of children's safety, regardless of the children involved or the source of the expressed concern. However, the Society has no right to share the results of any of its investigation with the referring person, absent a signed written consent by the subject of the investigation. For that reason, the Society could not advise the Applicant what action the Society took in response to her referrals.

44With regard to the content of its response to Term 7, I find that the Society has met its commitments as made in the Agreement.

FINDING ON THE MERITS

45I find that the Society did give reasons and/or explanations for the issues raised in the seven Terms of the Agreement.

ORDER

46For the reasons stated above, I find that the Society met its obligations to provide reasons and explanations in accordance with the Agreement, and as required under the Act. Therefore, the allegation on non-compliance is dismissed, and the CFSRB file on this matter is now closed as settled.

CONFIDENTIALITY ORDER

47Pursuant to Rules 9.3 and 9.4 of 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.