SA v. Chatham-Kent Children’s Services, 2019 CFSRB 95

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

SA

Applicant

-and-

Chatham-Kent Children’s Services

Respondent

DECISION

Adjudicator: John F. Spekkens

Date: December 31, 2019

Citation: 2019 CFSRB 95

Indexed As: SA v Chatham-Kent Children’s Services (CYFSA s.120)

APPEARANCES

SA, Applicant

Self-represented

Chatham-Kent Children’s Services, Respondent

Loree Hodgson-Harris, Counsel

INTRODUCTION

1The Applicant and Chatham-Kent Children’s Services (the “Society”) entered into a Settlement Agreement (the “Agreement”) during a mediation held on September 3, 2019, providing for a full settlement of all issues raised in the Application, dated July 22, 2019, to the Child and Family Services Review Board (the “CFSRB”).

2The Agreement contained 7 Terms, expressed as questions to the Society, which sought reasons and/or explanations from the Society. The parties agreed to a compliance date of October 2 and a non-compliance date of October 10, 2019.

3The Society sent a letter (the “Letter”), dated September 30, 2019, as its Response to the issues raised in the Agreement. The Letter was addressed to the CFSRB and to the Applicant.

4The Applicant sent an e-mail, dated October 2, 2019 to the CFSRB, advising that he was not satisfied with the Society’s “vague answers”.

5In accordance with the CFSRB’s procedures, when there is an allegation of non-compliance, the CFSRB will hold a hearing by teleconference (the “Teleconference”) to determine whether the Society has complied with the Agreement. This Teleconference occurred on December 12, 2019.

DECISION

6After reviewing the materials submitted by the parties, and hearing their arguments, I find that the Society met its commitments and obligations as set out in the Agreement and as required by the Child, Youth and Family Services Act, 2017 S.O. 2017, Chapter 14, Schedule 1 (the “Act”). The reasons for this finding follow.

ANALYSIS

The Law

7The CFSRB had previously found the application to be eligible for review under section 120 (4) 4 and 5 of the Act.

8The Act outlines the rights of Applicants, the duties and obligations of Children’s Aid Societies, and the mandate of the CFSRB.

9Section 120 of the Act reads as follows:

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

4. Allegations that the society has failed to comply with subsection 15(2).

Subsection 15(2) reads as follows:

Service providers shall ensure 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.

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

10The Act does not require or permit the CFSRB to make a determination as to the clinical wisdom or validity 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.

11In an allegation of non-compliance, an applicant’s statement of disagreement or dissatisfaction with the reasons given by the Society does not negate or invalidate those reasons.

The Teleconference

12At the start of the teleconference, I asked if there were any responses of the Society that were not being challenged. The Applicant indicated that there were a number of the Terms that were not challenged.

13The Terms that were not challenged were Terms 1 through 3, dealing respectively with the issues of whether there was currently an open file with the Society, whether the Society had any current protection concerns, and the need for glasses by the Child (this issue will be followed-up on a 1-1 basis with the worker).

14As well, Terms 5 and 6 were not challenged. These two terms dealt with the issue of the Applicant receiving regular reports on his Child (such as medical and school reports), and the issue of the Society’s request for the Applicant to take periodic drug tests (the latter issue having been resolved, with him not taking any illegal substances, and thus not having any concerns about such tests if still required by the Society).

15That left two outstanding Terms for review and discussion at this Teleconference.

Terms of the Agreement

Term 4: In a meeting on September 12 2018 with P.G., there was a commitment to issue a summary report to be shared with the Applicant; when will this report be shared?

16In its Letter of response to the Applicant, the Society wrote as follows:

In the meeting with [the Applicant] and his partner, there were many concerns presented regarding the child’s mother. This information was forwarded to the ongoing worker for follow up. [The worker] has no recall of committing to providing a summary report to [the Applicant].

[The Applicant] and the child’s mother had court involvement with the Society. [The Applicant] would have access to the historical concerns related to the mother. The Society is unable to provide [the Applicant] with any additional information without consent from the mother. The reason for this relates to the child’s mother right to privacy and confidentiality.

17The Applicant’s comments indicate that he was quite sure that there had been a commitment to a follow-up, but he also recognized and understood the position of the Society vis-à-vis the issue of the child’s mother and her right to privacy of confidential information.

18In the discussion between the parties, it was clarified by the Society that some of the information that the Applicant sought may be available to him through the court documents that are shared with both parties. This will give the Applicant, at least in broad terms, some of the information that formed the basis of Term 4. Both parties agreed that this issue will remain one that they will work on, recognizing the issue of the right to privacy. The issue is also somewhat more complicated by the fact that the Applicant and his partner live outside of the jurisdiction of the Society.

19I find that the parties, in the discussion, arrived at a resolution and understanding acceptable to both parties, and that, for the purposes of this Teleconference, this issue has been resolved.

20I find that the Society gave substantive information and explanations on Term 4 and thus met the Society’s obligations under the Agreement.

Term 7: Why does the Society, to this day, insist on further phallometric testing,

• given that the court did not include a requirement for continued such testing in its access decision;
• given that the Guelph CAS did not see it needing to be pursued;
• given the police report (2013-05-01) referring to three separate investigations, each of which came to the conclusion as stated in their report on page two, mid-paragraph: “revealed that no criminal offence had occurred”?

21The Society’s Letter stated as follows:

The Society continues to rely on the recommendations of the report prepared by Ms. Jennifer Holt. Ms. Holt recommended that [the Applicant] attend CAMH and participate in phallometric testing in order to attempt to determine his sexual preference so to assist in the development of a valid action-oriented safety plan.

On June 27, 2017 Ms. Holt advised [the Applicant] and his partner of the recommendation for phallometric testing. [The Applicant] requested that Ms. Holt seek funding from the Society to cover the fees associated with phallometric testing. This funding was approved by the Society; however, [the Applicant] did not follow through with this recommendation.

22The Applicant’s written response dealt with a number of past historical situations and difficulties that are only marginally related to the issue at hand.

23The discussion between the parties proved much more productive at coming to a resolution on this issue. The Society is requesting the testing to ensure that there is no risk to the Child if the parties agree to move further towards the Applicant’s goal of non-supervised access visits. Successful testing results may be a significant step to changes away from the current arrangement of requiring supervised access visits. As well, counsel helping the Applicant is seen as a good step going forward.

24The parties agreed that this issue is in the process of resolving itself. The Applicant is committed to his current relationship. He has committed to no more hard-drug use. The Applicant is aware that the decision is his, in terms of the testing, but also aware of the Society’s position as to future unsupervised visits. And if the parties fail to continue on agreement on the testing issue, the ultimate forum for a decision on this issue may well be the child protection court process.

25I find that the parties, in the discussion, arrived at a resolution and understanding acceptable to both parties, and that, for the purposes of this Teleconference, this issue has been resolved.

26I find that the Society gave substantive information and explanations on Term 7 and thus met the Society’s obligations under the Agreement.

ORDER

27For the reasons given I find the Society met its obligations to provide reasons and explanations for its decisions in accordance with the Agreement and as required under the Act. I also find that the Terms 4 and 7 are actively being worked on by the parties, and that for Term 7 the ultimate forum for a decision may very well be the court. Therefore, the initial allegation of non-compliance is being resolved, and the CFSRB's file is closed as settled

CONFIDENTIALITY

28Pursuant 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.