CHILD AND FAMILY SERVICES REVIEW BOARD
BETWEEN:
LLD
Applicant
-and-
Nogdawindamin Family and Community Services
Respondent
DECISION
Adjudicator: Michele O’Connor
Indexed As: LLD v Nogdawindamin Family and Community Services
(CYFSA s.120)
APPEARANCES
LLD, Applicant
Self-represented
Nogdawindamin Family and Community Services, Respondent
Rejean Parise,
Counsel
Introduction
1LLD, (“the Applicant”) filed a complaint against Nogdawindamin Family and Community Services (”the Society”) on July 1, 2021 under sections 120(4)4 and (4)5 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched. 1.
2This Application consists of the following concerns which were identified jointly by the parties during the pre-hearing:
The Applicant alleges that the Respondent failed to hear her reported concerns of abuse of her son at the hands of his father after April 1, 2017; allegations include use of corporal punishment on multiple occasions (October 2017), including one particular incident in front of the Applicant’s daughter; the fact that the Applicant’s son broke his arm and leg (approximately age 10); he has new and/or worsening scars on his back (as per in-person conversation to Ms. Carter in 2017; e-mail to the Chief of Batchewana First Nation in 2019; and email to KL on June 24, 2019); and her concerns related to parental alienation which has led to mental health issues for her son (e-mail to KL on June 24, 2019, September 17, and 18, 2018);
The Applicant alleges that the Respondent failed to hear her concerns related to the alleged risk of sexual assault/molestation or experience of sexual assault/molestation of her daughter over the years (November 11, 2018); and a recent allegation that her daughter had been sexually assaulted over the years (raised by a home support worker with Garden River to Respondent workers in a phone call on May 17, 2021);
The Applicant alleges that the Respondent has not implemented a protection plan for her daughter which would include informing the counsellor assigned to her daughter about the abuse (as per conversations with KL over the Summer of 2021);
The Applicant alleges that the Respondent failed to hear her concerns regarding returning her son to his father and its impact on her son (related to referral in mid October of 2017);
The Applicant alleges that she was not provided with reasons for the Respondent’s failure to act to protect her children related to incidents highlighted in Issues 1, 2, 3 and 8.
The Applicant alleges that the Respondent’s supervisors did not respond to her complaints in Issues 1, 2, 3 and 8 in a timely manner;
The Applicant alleges that she was not provided with a reason as to why the Respondent staff raised her mental health status when she raised concerns about her children (e.g. with Trudy A at a meeting on January 31, 2020)?
The Applicant alleges that the Respondent has not heard her concerns that her children’s fathers are using the children to abuse/harm her; (e-mails sent to Denise R on July 4, 2019, and August 16, 2019; and conversations with workers over the years); and
The Applicant alleges that she was not provided reasons as to why she removed from the family well-being program in 2017 or 2018 and her file closed, after she complained about the Respondent’s lack of response to her expressed child protection concerns.
3The CFSRB must decide whether the Society met its obligations regarding the Applicant’s complaints, i.e. was she given an opportunity to be heard, and was she given reasons for decisions that affected her interests.
4The hearing was held on February 16 and 18, 2022. The Applicant testified. The Society elected not to call any evidence. It filed documentary evidence during its cross-examination of the Applicant.
5For the following reasons, the CFSRB finds that the Society did give the Applicant an opportunity to be heard, but it did not provide her with satisfactory reasons for some of its decisions.
BACKGROUND
6On April 1, 2017, Nogdawindamin was designated as a “Society” for child protection purposes. The Applicant’s file was transferred from another children’s aid society at that time. While the Applicant’s complaints cover several years, the scope of this hearing relates only to the period after April 1, 2017.
7The Applicant is the mother of two children. Her son, L, is almost 16 years old and has his primary residence with his father. Her daughter, C, is almost 14 years old and has her primary residence with her father. The Applicant and both children are registered members of Batchewana First Nation (“BFN”).
8In the children’s early years, the Applicant had custody of both of them. The custody access issues have been litigated on and off since 2006. In 2015, after the mother lost her housing and temporarily re-located, the fathers each made application to the court seeking to change custody. Since then, the two fathers have been working in concert and, for a time, resided at the same address.
9L’s father is CW. On June 24, 2019, the court made a final Order of joint custody of L, primary residence and final decision-making with CW, and parenting time 2 weeks of each month with the Applicant “in accordance with the child’s wishes”. Since that Order, there have been extended periods during which the Applicant has not seen her son.
10C’s father is GS. On June 21, 2018, the court made a final Order of joint custody of C, primary residence and final decision-making with GS, and parenting time to the Applicant on a week about basis. Recently this child’s contact with her mother has been less consistent than it was initially.
11The Office of the Children’s Lawyer (“OCL”) was ordered to complete an assessment under s.112 of the Courts of Justice Act in each of the proceedings commenced by the children’s fathers in 2015.
12The OCL final s. 112 assessment report pertaining to L was filed with the court on April 10, 2018. A further “Voice of the Child” report was completed by the OCL and filed with the court on December 7, 2018. The final Order referenced above was consistent with the OCL recommendations.
13The OCL final s. 112 assessment report pertaining to C was filed with the court on April 9, 2018. The final Order referenced above pertaining to C was similarly consistent with the OCL recommendations.
ANALYSIS
14The relevant provisions of the Act are set out below:
Section 120(4) of the Act provides:
The following matters may be reviewed by the Board under this section: …
Allegations that the society has failed to comply with subsection 15(2);
Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
Section 15(2) provides:
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.
Section 120(7) of the Act provides:
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;
(d) order the society to provide written reasons for a decision to a complainant; or
(e) dismiss the complaint.
15In PO v. Family and Children’s Services Niagara 2012 CFSRB 38 at paras. 14 -15, the CFSRB described the purpose of provisions equivalent to s.120(4)4 and 5 of the Act in its predecessor legislation, i.e., sections 68.1(4) 4 and 5 of the Child and Family Services Act, RSO 1990, C.11, 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 her concerns are taken seriously and dealt with thoroughly.
16This description of the purpose applies to the current legislative scheme.
17Moreover, the right to reasons under the Act means a right to a meaningful explanation about decisions that affect the applicant’s interests. In JG v Windsor Essex Children’s Aid Society, 2013 CFSRB 8, the CFSRB held that:
With respect to s.68.1(4)5 (now s.120(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.
18The Act does not mandate or permit the CFSRB to make determinations as to the clinical wisdom or validity of decisions made by the Respondent and for which the Respondent is giving reasons under s.120(4)5.
ISSUES
# 1 That the Society failed to hear the Applicant’s reported concerns of abuse of her son at the hands of his father, her concerns about returning her son to his father; and, that the Society failed to provide her with reasons for its failure to protect L in relation to these incidents (Concerns 1, 4 and 5)
19For the sake of clarity and to avoid repetition, I have combined some of the Applicant’s identified concerns.
20The Applicant testified that her principal concern regarding her son, L, is about the Society’s failure to protect him from abuse at the hands of his father, CW, whom she describes as having been an abusive person his whole life. She said she raised her concerns of abuse “multiple times” to the Society but was repeatedly told there was nothing it could do about it. She testified about 2 specific incidents.
21On October 13, 2017, the Applicant brought both of her children to a local shelter. The shelter staff contacted the Society to advise that the child, L, wanted to disclose information about a physical assault by his father which C had witnessed. The BFN police were notified, as were the OPP. The children were subsequently brought to the OPP office to be interviewed on video. The Society’s on-call worker and the BFN band representative were in attendance.
22The Society “Safety Assessment” confirms the facts as described by the Applicant. The child disclosed that the incident happened on September 27, 2017. L said that his father had spanked him several times, that his sister was present and that both children cried. He also described being slapped on the side, back and top of his head. C was interviewed and confirmed the essential facts. The children were transported to the OPP station for a video interview. There were no visible signs of injury. The “risk” level was characterized as “High” and the immediate safety intervention plan was for the children to remain with the Applicant for the week-end while the investigation continued. She was instructed to call the police and have CW removed if he came to her home. At that time, L’s father had a temporary custody order. Court proceedings were ongoing.
23The Applicant testified that she subsequently received a telephone call from the Society worker telling her she had to return the child to his father. The police came to her home. She said L was crying and scared but the police insisted that she return him. She was told only that CW had “signed a paper agreeing not to hit L for 30 days”, and that CW had raised protection concerns about her. She was angry and upset and said she “kept asking the worker to explain” but she was not told what those allegations were. The worker reportedly said that it was a supervisory decision, and that the Society could not interfere with a court order, even though it was, in fact, the Applicant’s weekend with her children.
24The Society filed documents detailing the Family Wellness Plan entered into with the father which included not only that he not use physical discipline or threats of physical discipline with L, but it also detailed a plan for weekly scheduled and unscheduled visits to the home and private visits with the child at his school. The father was required to complete the Triple P parenting program which he did, and the file was closed in June of 2018. As required, the OPP provided a copy of the video statement to the local police where CW was a resident. The local police decided there was not enough for them to press charges.
25The Applicant asserts that the details of this Wellness plan were not shared with her and she was left believing that all CW had to do was “he signed a paper agreeing not to hit L for 30 days.” In her view, the Society was not listening to her and did not give her satisfactory reasons for its decision to return the child to his abusive father. She also believes that, since that incident, her children no longer feel they could tell someone if they were being abused.
26The Applicant agreed in her testimony that this incident “was taken very seriously”. But what she wanted the Society to do was “to protect her children like they were supposed to”. In her view this meant that the Society should have supported her in the custody access proceedings and/or brought a child protection application placing L in her care.
27The Applicant acknowledged in cross-examination that the OCL assessor was aware of this incident and referenced it in her report, as was the judge who ultimately ordered that L’s primary residence would be with CW. She viewed the judge and his final decision as “racist”.
28The second incident the Applicant testified about was her report to the Society in June of 2019 about marks on her son’s back. “It looked like he had been whipped”. She made this report to her worker and provided a photograph of the marks. The Applicant testified - “They took it seriously, there was an investigation and they spoke with L’s doctor, but then told (her), there’s nothing we can do.”
29The Society filed documents confirming that it had investigated the marks on L’s back. The risk was rated as “high” but the result was “inconclusive”. The child did not disclose any physical harm and said they were stretch marks following a recent growth spurt which was consistent with what the father reported. The worker followed up with L’s doctor who said they were not stretch marks but rather the results of an old injury. No specificity was noted regarding the “old injury”, and no one could recall it. The report indicates the worker was not able to confirm the reason for the marks nor the timeframe as to when the child acquired them. “The outcome of the investigation is inconclusive as IAW cannot confirm as to how or when the marks were acquired on the child’s body. The file was identified to close at Intake”.
30The Applicant’s complaint about this incident is that she was given only generalized answers that the Society does not get involved in court orders. “They should have explained the process to me. … I do not understand why they would return a child to an abuser who is angry and spiteful. My child will be afraid to report anything else. To that point, my children told me everything. After that incident, nothing.”
31In my view, based solely on the evidence of the Applicant since the Society elected not to call any evidence, the Applicant’s concerns are valid. I find that she was heard, but she was not given sufficient explanation of the Society’s role in either incident, e.g. how an investigation is conducted, timing, coding, how/why it reaches a conclusion as it did in her situation, and how/why it decides whether or not to open the file for ongoing monitoring versus closing it. No one explained to the Applicant the various aspects of an investigation or that closing the case does not mean the Society did not believe her. While the outcome may have been the same and the Applicant may still have been unsatisfied, she had reported very concerning information about excessive discipline and possibly other abusive incidents in the home where her son resides. Greater care and attention was needed in the feedback given to her after each investigation. As noted above in JG v Windsor Essex Children’s Aid Society, “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.” (emphasis mine).
Issue 2 That the Society failed to hear the Applicant’s concerns related to sexual assault/molestation of her daughter C (and the similar report from a third party to the Society on May 17, 2021); that it did not implement a protection plan for C; and that it failed to provide her with reasons for its failure to protect C in relation to those reports (Concerns 2, 3 and 5)
32The Applicant testified that when she read in the OCL report filed in the custody proceedings between her and GS (C’s father) that he had been the subject of a protection investigation, she became concerned for C’s safety in his care. Reportedly, the teen aged daughter of one of GS’s former partners made allegations which were investigated by a different children’s aid society. The allegations were not verified, and the investigation was closed. Based on the Applicant’s personal experience with GS, it is her belief that he is “a predator”.
33The Applicant testified that she raised concerns in 2019 with her worker that GS may molest C. The Society responded by arranging counselling for the child “as a safety net”. The Applicant complains that the Society did not advise the counsellor of the nature of the concerns and, when C subsequently disclosed a historical assault in May of 2021, the counsellor told the Applicant she was not aware C was in a high-risk situation. The Applicant testified that she told her worker “Someone needs to do something. … They did nothing. They wouldn’t listen to me, believe me.”
34In 2021, C disclosed to the Applicant that her father’s recent partner’s teenaged son had sexually abused her. The applicant told her Family Wellness Worker about this and advised of C’s insistence that no one tell her father. The wellness worker reported it to the Society on May 21, 2021. The Applicant testified that “I wanted them to investigate but C didn’t want anyone to know.” She admitted that the Society called her several times and wanted to meet with C but she “had to put it off”. She agreed for C to return to counselling but said that after one appointment C did not want to continue.
35The Society filed a “Referral Report” which confirmed that an investigation was attempted but the Applicant was “adamant” that she did not want the father aware of this allegation. A new referral was made so C could resume counselling with her former counsellor as the file had been closed in 2020. The report states “At the time of the initial report there was insufficient information regarding the disclosure and did not warrant a child protection investigation to be opened at that time as the information was dated and no further details were disclosed. Upon further review of the client file there was a report of an investigation by another society into the allegations about GS and his former partner’s daughter. There was no reference to other disclosures.”
36The Applicant testified that she does not know what steps the Society took to investigate her concerns about C, when or how it did so, and how or why it would make the decision as to whether or not her concerns were “verified”. In her view, she understood that the problem had to be fixed through the court, but she expected the Society would “help” her to protect her children. By closing the file without taking any action at all, the Applicant believes the Society did not take her concerns seriously.
37Similar to my findings above, and in the absence of any evidence refuting her claims, based solely on the evidence of the Applicant I find the Applicant’s concerns on this Issue are valid. The Society attempted to meet with her and her daughter to conduct an investigation. The Applicant admits she did not make herself or the child available because of C’s wishes. However, the applicant was not given sufficient explanation of the Society’s process - how an investigation is conducted, how/why it reaches a conclusion, and how/why it decides whether or not to open the file for ongoing services or to close it. While the Applicant may still have been unsatisfied with the Society’s actions on this issue, she had reported very concerning information about a possible sexual assault of her (then) 11 year old daughter. Greater care and attention was needed in the feedback given to her after the investigation. The test in JG v Windsor Essex Children’s Aid Society was not met.
Issue 3 That the supervisors failed to respond to her in a timely manner (Concern 6)
38The Applicant’s testimony on this point was ambiguous. She initially indicated that the supervisors failed to respond to her messages. Then she said that when the supervisor called her back, “I was feisty and usually ended up hanging up in anger. I was angry because they weren’t doing anything to protect my children.”
39The Applicant went on to describe how she felt that her children would never have been removed from her care if the Society had more fully supported her in the court proceedings. “The judge wouldn’t listen to me so when the fathers alleged protection concerns about me, it really would have helped if (the Society) had submitted that there were no serious concerns about me.”
40The evidence does not support a finding on this issue. This aspect of the Applicant’s complaint is dismissed.
Issue 4 That the Society raised her mental health status at a meeting on January 31, 2020, when the Applicant was there to discuss her concerns about her children and about the Society’s services (Concern 7)
41The Applicant testified that she had filed a service complaint with her concerns about the Society “over the years 2017 to 2020”. She was offered a meeting with TA, the Director of Service, on January 31, 2020. Also present were her Band Representatives and her wellness worker. She asserts that she raised every concern in her complaint and TA “circled back and kept offering help for my mental health”. Four or five times TA offered her access to free counselling. “It didn’t matter how serious my concerns about my children were … It felt like an attack on my mental health.” After approximately 30 minutes, the Applicant left the meeting. Some time later she received a letter from TA, copies of which were filed by the Society.
42The Applicant’s allegations on this issue were not challenged by the Society. She admitted during cross-examination that she did not ask TA why she kept circling back to the Applicant’s mental health.
43I accept the Applicant’s evidence that this is what happened at the meeting. An explanation from TA is required.
Issue 5 That the Society has not heard her concerns that her children’s fathers are using the children to abuse/harm her (Concern 8)
44It is undisputed that the children’s fathers have been cooperating in their dealings with the Applicant since 2017. The OCL assessor observed it and noted it in the OCL reports filed in the custody access proceedings.
45The Applicant asserts that the Society has not heard her concerns about this conduct. She has told the Society about specific incidents and testified about an incident on October 4, 2019, when the children were with her for her birthday. Both fathers were present every place the Applicant and children went that day (the daughter’s soccer game, the mall, the park). The Applicant was suspicious as she had received information from an unnamed person that “They planned to kill me that day”. She told her worker about it and that she had filed a police report. The worker apparently “noted it” in the file. In response to the question of what her expectation was when she reported this to the Society, she said that she wanted her CAS worker to believe her and that it was a legitimate concern about the risk of emotional harm to her children.
46The applicant said this was only one example. She recalled sending at least 2 emails to her worker in 2019 advising that the fathers were using the children to abuse and harass her. Her children are expected to report on her to the fathers and to cancel plans with her. To the Applicant’s knowledge, the workers have not followed up on these concerns with the fathers. She said she had reported numerous incidents over the years. “They write it down but there is no follow-up’”
47The Applicant testified that she no longer reports these things to the Society “because they don’t take it seriously.” She admitted that she “wants the Society to agree with me that these men are dangerous to me and my children.”
48As with the other issues, the Society provided no defence to these allegations.
Issue 6 That the Applicant was not provided reasons as to why she was removed from the family well-being program and her file closed after she complained about the Society’s lack of response to her expressed child protection concerns. (Concern 9)
49The Applicant testified that in or about 2017, she requested the Society’s help with housing and her application was refused. After the refusal, she made a verbal complaint but could not recall with whom she spoke. Two weeks after that complaint, her file was closed. She went to the office to find out why and assumed they did not want to deal with her anymore. Notwithstanding the fact of her file being closed, the Applicant continues to make reports of abuse to the Society.
50During cross-examination, the Applicant agreed that the Family Well-being Program was for financial assistance and that, in the end, she did not qualify for the type of financial assistance she was seeking. She recalled possibly receiving a letter to that effect.
51The Applicant also agreed in cross-examination that she continued to receive services from the Society in 2018, 2019, and that she was offered services in 2021 which she declined. She confirmed she was not, in fact, terminated from the family well-being program.
DECISION
52Based on the testimony of the Applicant and documents filed by the Society, I conclude that the Applicant was given the opportunity to be heard when she raised concerns about her children being abused. The Society was not able or willing to engage more fully in support of the Applicant in the ongoing custody access proceedings between the Applicant and her children’s respective fathers. It determined that the safety plans it put in place were adequate to protect the children. It provided full disclosure to the OCL, and the Applicant acknowledged that the abuse reports (including the photo of L’s back) were in evidence in those proceedings. In a s.120 application, the Society’s clinical decisions are not subject to review by the CFSRB. While the 2021 disclosure from C was not known at the time, there was specific reference in the OCL report to the earlier allegations against GS which were investigated by a different society.
53Regarding Issues 1 and 2, I find that the Society failed to provide the Applicant with satisfactory reasons for its decisions regarding the child abuse investigations regarding L and C. The test in J.W. v. Windsor Essex CAS (cited above) has not been met. The Applicant was not given sufficient information regarding the factors taken into account by the Society to allow her to understand why and how each of these decisions was made.
54Issue 3 is dismissed.
55Regarding Issue 4, I find that the Applicant deserves an explanation from the Director of Service regarding the meeting of January 31, 2020, as to why the focus was on the Applicant’s mental health rather than on her service complaint and/or her safety concerns for her children.
56Regarding Issue 5, the applicant is entitled to know if the Society followed up on her reported concerns, what steps they took in doing so, and what was the outcome.
57Regarding Issue 6, the Applicant clarified that, in fact, she was not “terminated” from the family wellness program, rather she did not qualify for the type of financial assistance she was hoping for. The issue is dismissed.
ORDER
58My remedial powers in this matter are restricted to those options in section 120(7) of the CYFSA as specifically set out at paragraph 14 above.
59Within 30 days, the Society shall provide a letter to the Applicant containing the following:
a. A general explanation of how a protection investigation works - timing, coding, how/why it reaches a conclusion, how/why it decides whether or not to open the file for ongoing monitoring versus closing it, what “risk” means in a child protection context, how important is cooperation from the parents, what verification means and what factors are considered in reaching a verification decision, and what is the process to provide feedback to the reporting person,
b. A clear and understandable explanation for its decision to return L to his father, CW, after L’s disclosure of the spanking incident including but not limited to whether the Society considered bringing a protection application before the court; what specific factors persuaded it not to; what consideration was given to the Applicant’s concerns about the impact on the child of being forced by police to go back to his father’s care; what services were offered to the Applicant to help her to understand the Society’s decision; and what was the nature of the Society’s follow-up care to L in his father’s home. Did the Society follow through with its commitment to have scheduled and unscheduled weekly visits and did it meet with L privately at school? What was the frequency and duration of those visits? What factors were considered by the Society in making the decision to close this file?
c. A clear and understandable explanation for closing the investigation into the marks on L’s back even though the father’s explanation for the marks was inconsistent with the observations of the child’s doctor. This explanation shall include what steps were taken by the investigating worker, what consideration was given to the history of prior abuse, what factors were considered in closing the investigation despite unanswered questions about causation, and what follow up if any was there to ensure L’s safety.
d. A clear and understandable explanation as to what steps were taken by the Society in the investigation into C’s disclosure of sexual abuse in 2021 even though the Applicant declined to make C available in accordance with her wishes - in that circumstance, how is an investigation conducted, how is a conclusion reached as to whether or not the child is at risk, how is the child protected, what factors are considered in the decision to close the investigation.
e. An explanation from TA as to why she focussed on the Applicant’s mental health in the meeting of January 31, 2020, rather than on the Applicant’s service complaint or her concerns about her children’s safety.
f. An explanation as to whether the Society heard and considered the Applicant’s concerns about the fathers working together against her; what steps, if any, did the Society take to support the Applicant on this issue; did it follow up with the fathers, individually or collectively with what outcome; and was any feedback given to the Applicant regarding these concerns.
Confidentiality Order
65Pursuant 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, Ontario on March 17, 2022
Michele O’Connor
Michele O’Connor
Member