RK v. Simcoe Muskoka Child, Youth and Family Services, 2020 ONCFSRB 49

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

RK Applicant

-and-

Simcoe Muskoka Child, Youth and Family Services Respondent

DECISION

Adjudicator: Catherine Bickley Date: May 15, 2020 Citation: 2020 CFSRB 49 Indexed As: RK v Simcoe Muskoka Child, Youth and Family Services (CYFSA s.120)

APPEARANCES

RK, Applicant Bernadette King, Representative

Simcoe Muskoka Child, Youth and Family Services, Respondent Karen O’Keefe, Counsel

Introduction

1This is an Application filed with the Child and Family Services Review Board (“CFSRB”) under section 120 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched.1 (the “Act”).

2The CFRSB found the Application eligible to proceed under sections 120(4)4 and 120(4)5. A full day in person hearing was held on November 8, 2019 with the parties later providing their closing submissions in writing. The Applicant subsequently provided additional submissions which had not been requested.

3The Applicant’s sister represented him at the hearing. Although she is not a lawyer or paralegal, she did an excellent job presenting the Applicant’s concerns under challenging circumstances.

4The Applicant, his cousin (CM) and his mother (TM) testified. TM’s testimony is not relevant to the questions before me as it focused on her interactions with Respondent staff rather than on any services provided to the Applicant.

5Two child protection workers (DP and MRM) employed by the Respondent testified. DP was the primary worker from January 2017 to January 2018. MRM had earlier carriage of the file and again became the primary worker in January 2018.

6In reaching my decision, I have reviewed the witnesses’ testimony, the documents entered as exhibits, the parties’ closing submissions and the additional submissions from the Applicant.

7For the reasons set out below, I find the Respondent met its obligations under section 120(4)4. I find it partially met its obligations under section 120(4)5.

the law

8The relevant provisions of the Act are:

s.15(2) 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;

s.120(4) The following matters may be reviewed by the Board under this section: (...)

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

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

Section 120(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.

s.120(8)(a):

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.

background

9The Applicant is the father of two children. He is separated from the children’s mother and there is ongoing family law litigation between them. The children have been living full time with their mother since February 2017. A restraining order preventing him from contact with his ex-spouse has been in place since September 2017.

10The Respondent has been periodically involved with the Applicant’s family since 2007 with its most recent involvement starting in August 2013. The Respondent originally provided services from its Orillia office. The file was transferred to the Barrie office in 2019.

11In a child protection proceeding brought by the Respondent, on April 1, 2016 an Ontario Superior Court of Justice order (incorporating a Statement of Agreed Facts) gave the Respondent discretion regarding the location and supervision of the Applicant’s access with his children.

analysis

I. The right to be heard (s.120(4)4)

12The CFSRB has explained the right to be heard as follows:

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.

P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 (para 14)

13The Applicant’s concerns under section 120(4)4, as set out in the September 20, 2020 Pre-Hearing Report, are discussed below.

a. The Respondent’s disclosure of a confidential email by replying to all

14On June 30, 2017, when replying to an email from the Applicant, DP copied the Applicant’s ex-spouse. This gave the Applicant’s ex-spouse access to the whole email chain between DP and the Applicant. The Applicant was upset because he understood his emails to DP to be confidential.

15I find the Respondent did not hear or respond to the Applicant’s concerns about the breach of confidentiality in a timely manner. Instead, DP’s only response to the Applicant’s complaint about the confidentiality breach, was the following:

These emails are not productive and if you would like to discuss any further issues or information I would be happy to meet with you at the Barrie office and or you can contact me via telephone. I will no longer be responding to any communication other than face to face or via phone with respect to your file.

16The Respondent has since acknowledged that the entire email chain should not have been included when the Applicant’s ex-spouse was copied. In its August 8, 2019 Response to the Application it stated:

The worker’s intension (sic) was only to add the mother to that specific email response and not to the chain of e-mails included.

The Society does apologise for this oversight as it was not intended.

17At the hearing, DP also acknowledged that an apology was appropriate.

18It is unfortunate that it took more than two years and an Application to the CFSRB for the Respondent to acknowledge this error. The Respondent has now heard the Applicant’s concerns regarding the confidentiality issue, has acknowledged it made an error and has apologized.

19The Applicant submits that the apology was not proper for several reasons including that it is not on the Respondent’s letterhead, dated or signed. He requests a more formal apology. Section 120(7) of the Act sets out the CFSRB’s remedial authority. The CFSRB has no ability to order an apology let alone order that an apology be in a specific format. As such, I find the Respondent has now satisfied its obligations under the Act on this issue.

b. The Respondent supported the application for a restraining order against the Applicant in the child protection matter and continues to support the imposition of a restraining order

20The CFSRB cannot review any aspects of the Application that are before the court or have been decided by the court.

21In September 2017, the Superior Court of Justice issued a restraining order preventing the Applicant from having contact with his ex-spouse. The determination of whether a restraining order was appropriate and whether one continues to be appropriate is a matter solely within the jurisdiction of the court. As such, section 120(8)(a) bars the CFSRB from reviewing the Applicant’s concern about the Respondent’s involvement in obtaining the restraining order.

c. The Respondent has not followed up with the assessment of a person proposed by the Applicant to supervise visits with his children

22The Applicant’s cousin, CM, emailed MRM on February 24, 2018 asking to be considered to supervise access in the Applicant’s home. MRM responded on February 26, 2018 with a number of questions and stated “the access you would be supervising would not begin until late summer early fall 2018”. CM promptly answered MRM’s questions and asked how long it would take to be approved. She also provided the Respondent with a recent clean Police Vulnerable Sector Check. The Respondent did not communicate further with CM after February 26, 2018.

23Assuming without deciding that the Respondent’s interactions with CM were part of a service being sought by or provided to the Applicant, I find the Respondent has heard the Applicant’s concerns about the Respondent’s failure to follow up with CM. The Respondent has explained to the Applicant repeatedly that it was not prepared to move to access in the Applicant’s home until he complied with its expectations (as outlined below).

d. The Respondent has failed to assess whether the Applicant has adequately followed up with expectations established by the Respondent they required to support unsupervised access by the Applicant to his children.

24An April 16, 2019 letter from MRM to the Applicant and his ex-spouse sets out in some detail why the Respondent does not support unsupervised access, including inappropriate behaviour by the Applicant at the Access Centre, the Applicant’s stopping access as a result of conflict with the Access Centre, the children’s reluctance to have access with their father, and the Applicant’s failure to access services recommended by the Respondent. It is clear from the letter that the Respondent is aware of and has considered the Applicant’s desire to have unsupervised access. It has heard his concerns but has a very different view of whether he has satisfied the requirements for unsupervised access.

25As discussed below, one of the Respondent’s expectations was for the Applicant to engage in intensive therapy. I accept MRM’s testimony that when she reached out to the counsellors the Applicant said he had met with, they reported he had not completed intake, could not identify a goal for therapy and had attended only two sessions. She testified that two sessions could not be considered intensive.

26I find the Respondent has satisfied its obligations under the Act with respect to this issue.

27The issue of whether the Respondent has provided the Applicant with reasons regarding access is considered below at II(a).

II. The right to reasons (120(4)5)

28The “right to reasons” under the Act is a right to receive a meaningful explanation of decisions that affect one’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8, at para 13, the CFSRB held that:

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.

29The Applicant’s concerns under section 120(4)5, as set out in the September 20, 2020 Pre-Hearing Report, are discussed below.

a. Details of the expectations of the Applicant following a parenting capacity assessment and what the Respondent required him to do in order to be approved for access supervised by the Applicant’s support person and eventually for unsupervised access

30In March 2016, Dr. Peter Marshall completed a Parenting Capacity Assessment of the Applicant and his ex-spouse. The Applicant alternately takes the position that there were no specific recommendations for him and that he has completed all the recommendations in the report.

31There is no persuasive evidence before me that the Applicant has taken meaningful steps to address the concerns about his parenting contained in Dr. Marshall’s report or to follow through on the expectations listed in the April 1, 2016 Statement of Agreed Facts. In both his testimony and closing submissions he asserted that a couple of counselling sessions were all he needed. He testified that he went to counselling twice. He said he “got the gist of it after the second one” and saw no need for further counselling.

32The Respondent has repeatedly explained to the Applicant its expectations of him. A January 11 2018 letter from Respondent counsel to the Applicant included the following:

... the visits will continue to be at the Society office as the Society does not have any access supervisors who are willing to attend your home at the present time due to your volatility. (...)

For your reference, please find enclosed: the final order of April 1, 2016 and the Statement of Agreed Facts signed by you on that date, which sets out the services you need to access. The first step would be for you to engage in the counselling as per the Statement of Agreed Facts ...

33The April 1, 2016 Statement of Agreed Facts included the following:

The parents shall immediately enroll in and participate in intensive therapy that addresses their role in the emotional maltreatment of the children. The parents shall demonstrate insight into her (sic) role in creating the conflict and their willingness to accept any of the responsibility for the emotional harm to the children, and shall demonstrate a readiness to change these behaviours.

34The Statement of Agreed Facts further sets out the consequences of the Applicant not following through on the therapy and other recommended agreed upon services i.e. a reduction in his access.

35DP’s December 29, 2017 affidavit also provides explicit details about the Respondent’s expectations of the Applicant, at paragraph 125, as follows:

The Society expects the father to engage in the following services:

a. Enroll, participate and complete intensive therapy/counselling with an accredited organization to address his role in the emotional maltreatment of the children.

b. The father should be able to demonstrate insight into his role in creating conflict and his willingness to accept any of the responsibility for the emotional harm to the children and shall demonstrate readiness to change these behaviours.

c. The father shall enroll, participate and engage in a therapeutic access program in order to learn and demonstrate appropriate parenting skills towards the boys.

36Paragraph 126 of the same affidavit notes “The date, the father has not engaged in the above-noted services”.

37MRM’s February 1, 2018 affidavit repeats the Respondent’s expectations that the Applicant engage in intensive one on one counselling.

38I find the Respondent has provided the Applicant with sufficient information for him to understand the factors it considered in making decisions around access.

b. The Respondent has not required the mother of the children to comply with the recommendations of the parenting capacity assessment

39The Respondent has explained to the Applicant that in its view “the mother has been appropriately engaging with the Society and services to address the items outlined in the assessment of Dr. Marshall as well as recommendations made by the Society. (February 1, 2018 affidavit, MRM).

40It is not necessary or appropriate for the Respondent to provide the Applicant with specific details of the counselling his ex-spouse has undertaken. Nonetheless, the Respondent did tell the Applicant that his ex-spouse had completed counselling and even told him the name of the organization where she received counselling.

41I find the Respondent has satisfied its obligations under the Act regarding this issue.

c. Whether the Respondent continues to be involved in the current custody and access dispute between the Respondent and the children’s mother

42Custody and access in a family law dispute are matters that fall within the jurisdiction of the court. As such, section 120(8)(a) of the Act bars the CFSRB from reviewing the Applicant’s concern about any involvement of the Respondent in those disputes.

d. The Respondent’s acknowledgement of errors made at the time the child protection file was transferred to the current office

43The Applicant did not provide sufficient information about this issue to understand what errors he is referring to. Nor is there any evidence before me that the Respondent has acknowledged errors regarding the transfer of the file between offices. As a result, I am unable to make any finding as to whether the Applicant’s concerns on this issue were heard.

e. Why the Respondent failed to inform the Applicant of an alleged sexual assault against his son for 6 months after the disclosure and why the allegation was determined not to be verified

44The Applicant testified that he only found out that his son DJ had been allegedly molested six months after the incident and then only through court documents. In its closing submission the Respondent stated that during a meeting the Respondent “did apologize for not notifying Mr. King of an investigation relating to [his ex-spouse] and the children.”

45I find the Respondent has not satisfied its obligations under the Act with respect to this issue. It has not provided the Applicant with sufficient information to understand the factors it took into account in deciding not to promptly inform him of the alleged sexual assault against his son. As well, while there may be some privacy concerns which limit the information the Respondent can give the Applicant about the investigation, the evidence before me does not establish the Respondent gave the Applicant any information about why the allegation was determined not to be verified.

f. The failure of the Respondent to apologize for not following up on the concerns raised by the Applicant prior to the transfer of the file to the current office

46In response to a complaint by the Applicant about the assignment of a French speaking worker to the file, the Respondent told the Applicant the file was transferred to a French Language Team because the mother is francophone. The Respondent continued to provide the Applicant with all documents in English. It is not clear what other concerns the Applicant is referring to. As noted above, the CFSRB lacks the remedial authority to order an apology.

47I find the Respondent has satisfied its obligations under the Act regarding this issue.

g. Clarification on whether the child protection file, as it pertains to the Applicant, is considered to be open or closed and if it remains open or would be reopened if the Applicants obtains access to his son, who would have carriage of the file

48The April 16, 2019 letter states “The Society is closing its file with the mother as she continues to do very well with her care of the children.” I agree with the Applicant the letter is not clear whether the file is also closed with respect to him. MRM clarified in her testimony that the name on the file is whoever has primary care of the children and “the father is a participant in the mother’s file and the file is closed”.

49I find the Respondent has satisfied its obligations under the Act regarding this issue

III. Communication issues between the Applicant and the Respondent

50In addition to the specific concerns considered above, there have been significant issues around communication between the Applicant and the Respondent. In my view, however, these were largely of the Applicant’s making.

51The Applicant bombarded the Respondent with frequent, lengthy emails which he cc’d to the workers’ manager (AJL) and a senior manager (TS). Even in emails to his ex-spouse he cc’d not only DP but also AJL and TS. He complained in his testimony that the senior manager never emailed him.

52He was upset when the manager and senior manager did not respond to his emails to the workers. At the hearing, he was also upset that these individuals were not called as witnesses by the Respondent.

53The Applicant explained he wanted to communicate by email because he has “a learning disability and I often forget things shortly after they are said.” Having emails gave him the opportunity to “go back and re-read it and then use it as a check list”. The Respondent explained that it did accommodate the Applicant by permitting him to record conversations with Respondent staff. It first offered in August 2017 ”to type up the conversation verbatim while sitting next to him and provide him with a copy upon conclusion of the meeting once he has reviewed the content.” Later, in a September 11, 2017 email to the Applicant the Respondent stated, “if you feel the need to record ... feel free.

54At the hearing, it became apparent that the Applicant either forgot information provided in emails, affidavits, and letters from the Respondent or simply disagreed with the Respondent’s reasoning. For example, the Applicant denied having seen the Respondent’s Response to his Application and various emails although they were sent to the email address he had confirmed was his.

55The Applicant’s non-constructive attitude toward communication with the Respondent is illustrated by his testimony about the April 16, 2019 letter from the Respondent. When first asked about the letter he strongly denied he had ever received it. When it was pointed out that he had himself entered the letter as an exhibit, he declared:

I probably didn’t read it. I got so much mumbo jumbo and bullshit from you guys. Obviously, I received it. Did I read it? Probably not.

56The Respondent cannot be held accountable for the Applicant’s failure to read correspondence and documents sent to him. It is not open to the Applicant to claim that the Respondent failed to provide him with reasons if he refused to read correspondence sent to him.

CONCLUSION

57For all the reasons set out above, I conclude:

• section 120(8)(a) of the Act bars the CFSRB from reviewing items I(b) and II(c);
• the Respondent has not met its obligations under the Act with respect to paragraphs II(e); and,
• the Respondent has fulfilled its obligations under the Act with respect to the remaining items.

order

58Within 30 days of the date of this Decision the Respondent shall send the Applicant a letter explaining why it did not promptly inform the Applicant of the alleged sexual assault of his son and what factors it considered in concluding the allegation was not verified. The remainder of the Application is dismissed.

confidentiality order

59Pursuant 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 online. 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, May 15, 2020.

Catherine Bickley

_____________________________

Catherine Bickley Vice-Chair