Ontario College of Social Workers and Social Service Workers v Direnfeld, 2019 ONCSWSSW 8

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF SOCIAL WORKERS AND SOCIAL SERVICE WORKERS

Indexed as:

Ontario College of Social Workers and Social Service Workers v Direnfeld, 2019 ONCSWSSW 8

Decision date:

20191119

BETWEEN:

THE ONTARIO COLLEGE OF SOCIAL WORKERS AND SOCIAL SERVICE WORKERS

• and -

GARY DIRENFELD

PANEL:

Rita Silverthorn

Chair, Professional Member

Amanda Bettencourt

Professional Member

Lisa Kostakis

Public Member

Appearances:

Jill Dougherty, counsel for the College

Lonny Rosen and Sari Feferman, counsel for the Member

Andrea Gonsalves, Independent Legal Counsel to the Panel

Heard:

June 18, 2019

DECISION AND REASONS FOR DECISION

1This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on June 18, 2019, at the Ontario College of Social Workers and Social Service Workers (the “College”).

The Allegations

2This hearing concerned two Notices of Hearing.

3In both Notices of Hearing, the Member is alleged to be guilty of professional misconduct pursuant to the Social Work and Social Service Work Act, 1998, S.O. 1998, c 31 (the “Act”) in that he is alleged to have engaged in conduct that contravenes the Act, Ontario Regulation 384/00 (the “Professional Misconduct Regulation”), Schedule “A” to By-law No. 66 of the Ontario College of Social Workers and Social Service Workers, being the Ontario College of Social Workers and Social Service Workers Code of Ethics (the "Code of Ethics"), and Schedule “B” to By-law No. 66 of the Ontario College of Social Workers and Social Service Workers, being the Ontario College of Social Workers and Social Service Workers Standards of Practice Handbook (the "Handbook")[1].

4The allegations set out in the first Notice of Hearing, dated April 18, 2019 (marked as exhibit 1 at the hearing) (the “First Notice of Hearing”) and the particulars of those allegations are as follows:

1. Now, and at all times relevant to the allegations, you were a registered social work member of the Ontario College of Social Workers and Social Service Workers (the "College").
2. Now and at all times relevant to the allegations, you were employed as a social worker at Interaction Consultants in Dundas, Ontario. In this capacity, you carried on a private practice wherein you provided marital counselling, child custody and access assessments, parenting capacity assessments, and mediation/arbitration services to clients.

A. ALLEGATIONS WITH RESPECT TO CLIENT J.S. BETWEEN OCTOBER 2014 AND FEBRUARY 2015

1. Client J.S. and his ex-wife were engaged in a dispute resolution process to resolve their custody/access dispute with respect to their four year-old son, B.S. J.S. and his ex-wife were referred to you in or about October 2014, with a view to obtaining a custody and access assessment to inform their dispute resolution process.
2. In October and November 2014, you had J.S. sign forms agreeing that:
   1. J.S. would “not bring any actions for damages or any other claims of any kind or character” against you for any acts or omissions in the course of carrying out your duties.
   2. J.S. would “waive any and all rights to address any issue” against you “through any Court or any other process not here specifically contemplated” and agreeing that he would pay “any and all costs related to [your] defense” if J.S. brought a claim against you for any reason at any time.
   3. J.S. would compensate you, on a substantial indemnity basis, for your cost of retaining legal counsel in circumstances where, in your sole and arbitrary determination, your integrity, independence, and quality of service are called into question or in any circumstance where you are required to attend and answer questions in accordance with any subpoena, order, or any other request.
3. During one or more sessions with J.S., you informed him that you believed he had “OCD” symptoms and that his OCD would affect his parenting. You indicated that if he did not get help for his OCD, J.S. would never get more time with his son.
4. When J.S. attempted to provide you with information, you refused it, did not let J.S. discuss the issues that he felt to be relevant, and/or blamed those issues on J.S. and on his alleged OCD. You dismissed issues J.S. raised with respect to his ex-wife’s parenting and/or mental health and blamed J.S.’s OCD for her behaviour. In addition, you indicated that his ex-wife’s mental health issues would not affect one’s parenting in the way that J.S.’s OCD would.
5. J.S. granted permission for you to contact his girlfriend to obtain information about his parenting and relationship with his son. However, you instead discussed with J.S.’s girlfriend your views about J.S. and his relationship with his ex-wife. During your conversation with J.S.’s girlfriend, you cast J.S in a negative light and suggested that living with and/or being married to J.S. would be difficult because J.S. liked to keep his house extremely neat. You also suggested that J.S.’s neatness had led to serious altercations between J.S and his ex-wife. During this phone call, you did not ask J.S.’s girlfriend about J.S.’s parenting, nor did you provide her with the opportunity to share her views on this subject.
6. You told J.S. that a man would never understand or have the same bond with a child that a mother has because the mother is the one who carries the child for nine months and breastfeeds the child. You further stated that the breakup of J.S.’s marriage was harder on his ex-wife than it would ever be on J.S. because his ex-wife was female and had a stronger bond with their child.
7. You stated that J.S.’s son would never be good at sports, and came to this conclusion based on brief physical “tests” that you performed.
8. In lieu of a formal report, you held a verbal disclosure meeting on or about February 3, 2015, with all involved parties. At the disclosure meeting, you repeatedly used the term “OCD,” and indicated that J.S. had many traits that are possessed by individuals with OCD. Although you indicated that you could not diagnose J.S. with OCD, you based your conclusions on J.S.’s alleged OCD. In particular, you concluded that because of J.S.’s OCD, B.S. should spend the same amount of time as currently permitted, or less, with J.S.

B. ALLEGATIONS WITH RESPECT TO CLIENT R.S. IN APRIL 2015

1. Following their separation, client R.S. and his former spouse were attempting to agree on a parenting plan for their five children, and were referred to you for mediation by their legal representatives. They met with you on or about April 9, 2015.
2. During that meeting, you dominated the conversation and spoke at length about your own history and accomplishments, as well as the court process, even though the latter was not relevant to mediation. As a result, little time remained for the assessment.
3. You jumped to conclusions based on minimal, unverified, or biased information, failed to listen to explanations, dwelled on historic facts instead of considering the most recent information, and/or listened to one party more than the other. In particular:
   1. You concluded that R.S. was an alcoholic and/or that R.S. and his wife were the product of alcoholic parents. You then drew various additional conclusions about R.S., his family, and/or his marriage on that basis.
   2. You drew conclusions about R.S.’s children based on insufficient information and without having met them.
4. You were biased against R.S. because of his drinking. Your approach negatively affected R.S.’s relationship with his ex-wife and children.

C. ALLEGATIONS WITH RESPECT TO CLIENT T.M. AND HER FORMER SPOUSE BETWEEN APRIL 2015 AND SEPTEMBER 2015

1. In or about April 2015, client T.M. and her former spouse, D.P., retained you as a mediator to assist in establishing a parenting plan for their five year-old daughter.
2. T.M. repeatedly expressed concerns about meeting with you in the same room as D.P., due to the high level of conflict in their separation. In response, you indicated that because D.P. had not physically abused her recently, meeting separately was not an option. You indicated to T.M. that you were not open to any further discussion of this subject.
3. T.M. and D.P. met with you in person on or about May 11, 2015 for a three-hour session. You spent the first hour speaking about your accomplishments and spent the remaining two hours speaking with T.M. and D.P. about their problems. During the session, D.P. indicated that he was under significant stress and pressure, both financially and in his personal life.
4. In the course of the mediation, you acted unprofessionally and verbally, psychologically, and/or emotionally abused T.M. and D.P. In particular, you:
   1. Repeatedly used foul language;
   2. Referred to D.P. as a “schmuck” and a “cocksucker;”
   3. Told D.P. to “shut up” and/or to “shut his mouth;”
   4. Informed T.M. that she was a “bitch;”
   5. Made disparaging comments about T.M. and D.P.’s parenting skills and stated that they were not even qualified to babysit your dog;
   6. Indicated on more than one occasion that T.M. and D.P.’s five year-old daughter was almost certain to commit suicide by the age of 16 because of the conflict in T.M. and D.P.’s relationship; and/or
   7. Stated that it would be T.M. and D.P.’s fault when their daughter committed suicide, but that you could not worry about this because it was not your job.
5. When you were scheduling a follow-up appointment with T.M. and D.P., T.M. asked that the appointment be scheduled during the day because she had safety concerns about being out alone at night. You dismissed T.M.’s concerns and insisted on scheduling the next appointment at night.
6. On May 12, 2015, the day after T.M. and D.P.’s in-person meeting with you, D.P. committed suicide.
7. In responding to T.M.’s complaint to the College, you stated T.M. was blaming you for D.P.’s death in order to ease tension with friends, kin, extended kin, and/or community members, who would otherwise believe her to be “solely responsible for harassing [D.P.] to his death.” You additionally stated that “[i]t would be very likely that [T.M.] would be considered responsible for the demise of [D.P.] by his kin and friends.”

D. ALLEGATIONS WITH RESPECT TO CLIENT K.M. BETWEEN APRIL 2013 AND FEBRUARY 2015

1. Client K.M. and her ex-husband J.K. retained you as a mediator/arbitrator to assist in resolving their disagreement over custody and access arrangements for their daughter, O.
2. Prior to their first meeting with you, you conducted a screening interview by telephone. During this interview, you conducted an inadequate domestic violence screening and/or focused only on whether there had been physical violence in the relationship. K.M. informed you that although there had not been physical violence, there had been emotional violence. For this reason, she indicated that she was not comfortable meeting in the same room as J.K. You informed her that because there was no physical threat to her safety, you would not conduct separate meetings. K.M. reiterated these concerns on other occasions over the course of your professional relationship with her, and each time, you denied her request to conduct separate meetings.
3. During your sessions with K.M. and J.K., you came to conclusions based on insufficient information and behaved unprofessionally. In particular, you:
   1. Dominated the meetings.
   2. Drew conclusions about K.M. and J.K.’s problems based on insufficient information.
   3. Drew conclusions about O. without having met her and without fully investigating the situation and/or ensuring you had all relevant information.
   4. Spoke to K.M. condescendingly, cut her off, did not permit her to present her views, raised your voice when speaking to her, prevented her from advocating for her daughter, and/or blamed her solely for the problems in O.’s relationship with J.K.
   5. Required K.M. to leave the session on or about July 30, 2014.
   6. Threatened to remove O. from K.M.’s care.
4. K.M. repeatedly stated that she felt O. needed counselling to deal with anxiety. You responded that it is not necessary for children to speak to counsellors. In addition, you stated that if O. saw a counsellor at her young age, when she was older and in a serious relationship, her partner would judge her and wonder what was wrong with her to have seen a counsellor when she was younger.
5. In your meeting with K.M. and J.K. on or about November 12, 2014, J.K. indicated that he wanted to remove O. from K.M.’s care and/or to prevent K.M. from having access to O. You subsequently scheduled the issue of O.’s residency for a day-long arbitration session to be held on or about January 20,
   2015. In dealing with this issue, you:
   2016. Refused to change the arbitration date when K.M.’s lawyer indicated that he would be out of the country on the scheduled date;
   2017. Scheduled the arbitration in a manner that did not allow sufficient time for K.M. to prepare;
   2018. Indicated that you would rule in favour of J.K. on the residency issue before the arbitration had begun.
6. K.M. filed an application with the Ontario Superior Court of Justice to remove you as the mediator/arbitrator. On or about February 17, 2015, Justice [“G”] issued a decision removing you as the arbitrator on the issue of O’s residency and as the mediator/arbitrator under the agreement between K.M. and J.K. on the basis that:
   1. Your actions created a reasonable apprehension of bias against K.M.;
   2. You had made several statements suggesting you had already made up your mind prior to the arbitration hearing;
   3. You had not treated K.M. fairly;
   4. You had violated ss. 19(1) and 19(2) of the Arbitration Act, 1991, and
   5. You had not provided K.M. with a reasonable opportunity to present her case because you had not allowed her an adequate period of time to prepare, an adequate number of days of hearing to present the case, or the opportunity to have counsel.

It is alleged that by reason of engaging in some or all of the conduct outlined above, you are guilty of professional misconduct as set out in section 26(2)(a) and (c) of the Act:

a. [withdrawn]

b. In that you violated Section 2.2 of the Professional Misconduct Regulation and Principle I of the Handbook (as commented on in Interpretation 1.5) with respect to clients J.S. and R.S. by failing to be aware of your values, attitudes, and needs and how these impact on your professional relationship with clients.

c. [withdrawn]

d. In that you violated Section 2.2 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.1.1) with respect to clients J.S. and R.S. by failing to be aware of the extent and parameters of your competence and your professional scope of practice and to limit your practice accordingly; failing to inform the client of the option to be referred to another professional when the client’s need fall outside your usual area of practice; failing, if the client wishes to continue the professional relationship, to ensure that (1) the services you provide are competently provided by seeking additional supervision, consultation, and/or education, and (2) that the services are not beyond your professional scope of practice; and/or failing to be guided by the client’s interests in making recommendations for particular services, referrals to other professionals, or a continuation of the professional relationship.

e. In that you violated Section 2.2 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.1.4) by failing to ensure that any professional recommendations or opinions you provide are appropriately substantiated by evidence and supported by a credible body of professional social work knowledge.

f. In that you violated Sections 2.2 and 2.6 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.2.3) by using information obtained in the course of a professional relationship and/or using your professional position of authority to coerce, improperly influence, harass, abuse, or exploit a client/former client.

g. In that you violated Sections 2.2 and 2.36 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.2.8) by engaging in conduct or performing an act relevant to the practice of the profession that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, and/or by failing to avoid conduct in the practice of social work that could reasonably be perceived as reflecting negatively on the profession of social work.

h. [withdrawn]

i. [withdrawn]

j. [withdrawn]

k. In that you violated Section 2.5 of the Professional Misconduct Regulation by abusing a client verbally, psychologically, or emotionally.

l. [withdrawn]

m. [withdrawn]

5The allegations set out in the second Notice of Hearing, dated September 12, 2016 (marked as exhibit 2 at the hearing) (the “Second Notice of Hearing”) and the particulars of those allegations are as follows:

1. Now, and at all times relevant to the allegations, you were a registered social work member of the Ontario College of Social Workers and Social Service Workers (the "College").

2. Now and at all times relevant to the allegations, you were employed as a social worker at Interaction Consultants in Dundas, Ontario. In this capacity, you carried on a private practice wherein you provided marital counselling, child custody and access assessments, parenting capacity assessments, and mediation/arbitration services to clients.

3. In or about December of 2011, client G.M. and his ex-wife, T.C., retained you to act as a parenting coordinator concerning the parenting of their two children. A custody and access assessment had previously been conducted by a Dr. M. with respect to the family in June of 2011.

4. During one or more sessions with G.M. and/or T.C. you acted unprofessionally and/or verbally, psychologically, and/or emotionally abused G.M. and T.C. In particular, you:

a. Repeatedly used foul language;

b. Referred to G.M. as (or as being perceived as) a "bastard", "bugger", "abuser", "abusive controlling son-of-a-bitch" and/or “schmuck”; and/or

c. Informed T.C. that G.M. perceived her as a “bitch”.

5. When concerns were raised with you regarding that language, you characterized yourself as plain spoken, using strong language and/or having a strong personal style.

6. In June, July and/or August of 2012, G.M. and /or his lawyer corresponded with T.C., T.C.'s lawyer and/or you, raising concerns about your performance of the role of parenting coordinator and the associated expense, which G.M. viewed as excessive in light of the limitations of that role. In particular, G.M. and/or his lawyer raised concerns that you were failing to have regard to the custody and access assessment of Dr. M. or to ensure compliance with the parties' Minutes of Settlement, dated January 10, 2010, and related Court Order, concerning custody and access arrangements, and that you were instead providing counseling to the parties.

7. On or about August 22, 2012, you sent a letter to the parties and their respective counsel, indicating that G.M. had escalated his "untoward behaviour" and was attempting to "blackmail" and "threaten to have [you] resign". In that letter, you:

a. Quoted paragraphs from a 1993 Report of Children Witnessing Wife Assault Working Group, concerning the dynamic of power and control and the "resulting pervasive intimidation and fear", negatively influencing the family dynamic, which arises from the use of coercive/ abusive disciplinary methods by fathers;

b. Relayed concerns expressed by T.C. about disruptive behaviour by the children upon returning from visits with G.M. and indicated that these reminded you of the quote referenced in (a) above;

c. Stated that it would be reasonable to be concerned that G.M.'s "excessive and extreme" behaviour and attitudes toward T.C. would "spill over to their children such that they too would need protection from his intensity and misperceptions";

d. Expressed concern that G.M. Had "lost his senses";

e. Stated that you had "safety concerns at least from a psychological/emotional abuse perspective for [T.C.] and by extension, their children, as witnesses to their father's intensity and mother's emotional derailment by father";

f. Recommending that this matter be returned to court on an urgent basis and that the Court consider an interim order awarding sole custody of the children and primary residence of the children to T.C., with an order for supervised access or withholding access to G.M. until it can be determined that G.M. No longer poses a threat to T.C. And, by extension, their children.

8. You did not forthwith report the concerns expressed in your August 22, 2012 letter and the information on which they were based to a children’s aid society.

9. Following your August 22, 2012 letter, T.C. brought a motion before the Ontario Superior Court of Justice (Family Court branch) which was disposed of by order of the Honourable Justice [“L”], dated September 7, 2012. Justice [“L”] ordered, among other things, that you “shall have no involvement with the parties as mediator, parenting coordinator or any other role associated with issues between the parties” and directed the parties’ counsel to forward your letter of August 22, 2012 to the Catholic Children’s Aid Society (the “CCAS”) for their input.

10. Counsel for G.M. forwarded your August 22, 2012 letter to the CCAS on or about September 11, 2012. The CCAS responded by letter dated October 4, 2012, declining to intervene.

It is alleged that by reason of engaging in some or all of the conduct outlined above, you are guilty of professional misconduct as set out in section 26(2)(a) and (c) of the Act:

a. In that you violated Section 2.2 of the Professional Misconduct Regulation and Principle I of the Handbook (as commented on in Interpretation 1.5) with respect to client G.M. by failing to be aware of your values, attitudes, and needs and how these impact on your professional relationship with clients.

b. In that you violated section 2.2 of the Professional Misconduct Regulation and Principle I of the Handbook (as commented on in Interpretation 1.6) with respect to client G.M. by failing to distinguish your needs from those of your client to ensure that, within professional relationships, clients’ needs and interests remain paramount.

c. In that you violated Sections 2.2 and 2.6 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.2.3) by using information obtained in the course of a professional relationship and/or using your professional position of authority to coerce, improperly influence, harass, abuse, or exploit a client/former client.

d. In that you violated Sections 2.2 and 2.36 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.2.8) by engaging in conduct or performing an act relevant to the practice of the profession that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, and/or by failing to avoid conduct in the practice of social work that could reasonably be perceived as reflecting negatively on the profession of social work.

e. In that you violated Section 2.5 of the Professional Misconduct Regulation by abusing a client verbally, psychologically, or emotionally.

f. [withdrawn]

g. In that you violated Section 2.29 of the Professional Misconduct Regulation with respect to client G.M. by contravening a federal, provincial or territorial law or a municipal by-law in circumstances in which the purpose of the law is to protect public health.

Member’s Position

6The Member admitted to some of the allegations set out in the Notices of Hearing, as modified in two Agreed Statements of Facts, set out below. The College requested and the Panel granted leave to withdraw the other allegations in the Notices of Hearing. The Panel conducted an oral plea inquiry and was satisfied that the Member’s admissions were voluntary, informed and unequivocal.

The Evidence

7The evidence was tendered by way of two Agreed Statements of Facts.

8The Agreed Statement of Facts relating to the First Notice of Hearing provided in relevant part as follows.

1. Now and at all times relevant to the allegations, Gary Direnfeld (the “Member”) was a registered social work member of the Ontario College of Social Workers and Social Service Workers (the “College”). At all relevant times, the Member carried on a private practice as a social worker in which he provided marital counselling, child custody and access assessments, parenting capacity assessments, and mediation/arbitration services to clients. In January 2015, the Member ceased offering services that would require court involvement, but continues to offer services for high conflict separated parents outside of court processes.

2. As a social worker, the Member’s scope of practice permitted him to provide assessment, diagnosis, treatment, and evaluation of individual, interpersonal, and societal problems through the use of social work knowledge, skills, interventions, and strategies. The College’s Code of Ethics and Standards of Practice Handbook (the “Handbook”) defines a social work diagnosis as follows:

A social work diagnosis defines that series of judgments made by a social worker based on social work knowledge and skills in regard to individuals, couples, families, and groups. These judgments:

(a) serve as the basis of actions to be taken or not taken in a case for which the social worker has assumed professional responsibility and

(b) are based on the Social Work Code of Ethics and Standards of Practice.

Such judgments and the procedures and actions leading from them are matters for which the social worker expects to be accountable.

3. Social workers do not have the knowledge or skill set to diagnose diseases and disorders classified in the DSM-IV Codes found in the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association (“DSM-IV”). The provision of such a diagnosis is not a “social work diagnosis” within the meaning of the Handbook, because it is not based on social work knowledge and skills.

4. Obsessive Compulsive Disorder (“OCD”), alcohol dependency, and alcohol abuse are diseases or disorders classified in the DSM-IV. Consequently, social workers are not permitted to communicate a diagnosis in respect of these disorders.

A. CONDUCT WITH RESPECT TO CLIENT J.S. BETWEEN OCTOBER 2014 AND FEBRUARY 2015

1. Client J.S. and his ex-wife were engaged in a dispute resolution process to resolve their custody/access dispute with respect to their four year-old son, B. J.S. and his ex-wife were referred to the Member in October 2014, with a view to obtaining a custody and access assessment to inform their dispute resolution process.

2. In October and November 2014, the Member had J.S. sign forms agreeing that:

   1. J.S. would “not bring any actions for damages or any other claims of any kind or character” against the Member for any acts or omissions in the course of carrying out the Member’s duties.
   2. J.S. would “waive any and all rights to address any issue” against the Member “through any Court or any other process not here specifically contemplated” and agreeing that he would pay “any and all costs related to [the Member’s] defense” if J.S. brought a claim against the Member for any reason at any time.
   3. J.S. would compensate the Member, on a substantial indemnity basis, for the Member’s cost of retaining legal counsel in circumstances where, in the Member’s sole and arbitrary determination, the Member’s integrity, independence, and quality of service were called into question or in any circumstance where the Member was required to attend and answer questions in accordance with any subpoena, order, or any other request.

3. The Member had previously been cautioned by the College’s Complaints Committee, in a decision dated September 8, 2014, that it was inappropriate to have clients sign waivers of this nature, on the basis that such waivers were of questionable enforceability, not in his clients’ best interests, and might be found to reflect negatively on the profession of social work.

4. During a session with the Member, J.S. stated that his ex-wife felt he had OCD. Although the Member indicated that he could not diagnose J.S. with OCD, he stated on numerous occasions that he believed J.S. had behaviours which were consistent with OCD and that this would affect his parenting and might influence (and have negative outcomes for) his son B. The Member indicated that if J.S. did not get help for his OCD behaviours, it could affect the time with his son. The Member suggested to J.S. that he see a professional to get help  in relation to his OCD behaviours.

5.  If he were to testify, the Member would state that his notes accurately reflect that he advised J.S. to consult a psychologist to obtain a diagnosis.  If J.S. were to testify, he would state that he sought Cognitive Behavioural Therapy for OCD from another RSW, based upon what he understood to be the Member’s recommendation.

6. On numerous occasions, the Member referenced J.S.’s alleged OCD during the assessment process and was influenced by it in making recommendations relating to custody and access. J.S. indicated that when he attempted to raise issues of concern to him, the Member would interrupt him mid-sentence and would attribute those issues as well as concerns around his wife’s parenting and mental health, to J.S.’s alleged OCD. If the Member were to testify, he would state that he was challenging the statements made by both clients, given the context of dialogue in a custody and access assessment, and that the parties were providing competing views.

7. During one session, J.S. told the Member that he was upset about not seeing B. as frequently as he would like. In response, the Member explained to J.S. that, generally speaking, men do not have the same bond with a child that a mother has, because the mother is the one who carries the child for nine months and breastfeeds the child. The Member further stated that the breakup of J.S.’s marriage was likely harder on his ex-wife than it would be on J.S. because his ex-wife was female and the primary caregiver and had a stronger bond with their child. These statements were supported by a theory rooted in social science research that is not a current credible body of social work knowledge. If the Member were to testify, he would state that he intended to explain to J.S. that mothers typically develop child care competencies earlier than fathers and that this could make it more difficult for mothers during a separation and that he intended these statements to enable each parent to understand the other’s perspective.

8. J.S. also informed the Member that it was important to him that B. was enrolled in sports, as he felt that they offered several benefits to children. Based on brief observations of B., B.’s expressed interest in fine motor skill activities (such as colouring), and a physical “test”, which involved getting B. to hop on one leg, the Member told J.S. that B. had better fine motor skills than gross motor skills, that he would not excel at sports, and encouraged the parents to enroll him  in the arts instead. This test and the inferences drawn by the Member about B.’s abilities were not supported by a credible body of social work knowledge. If the Member were to testify, he would say that his observations were offered to the parties in their custody dispute in an attempt to assist them to reach an agreed parenting plan with respect to the child’s activities.

9. In connection with his role as assessor and the process of a custody/access assessment, the Member sought permission from J.S. to contact his girlfriend to obtain information about his parenting and relationship with B. and J.S. granted such permission.

10. [deleted]

11. During his conversation with J.S.’s girlfriend, the Member discussed the allegations made of J.S. by his former wife. He further suggested that living with and/or being married to him could be difficult because J.S. liked to keep his house extremely neat. The Member also suggested that J.S.’s neatness had led to serious altercations between J.S and his ex-wife. If the Member were to testify, he would state that he spoke about J.S. in this manner in order to elicit information regarding the environment J.S. would provide for B. and to test the allegations that were made by J.S.’s ex-wife about him.

12. In lieu of a formal report, the Member held a verbal disclosure meeting on or about February 3, 2015, with all involved parties. At the disclosure meeting, the Member repeatedly used the term “OCD,” and indicated that J.S. had many traits that are consistent with individuals with OCD. Although the Member indicated that he could not diagnose J.S. with OCD, the Member based his conclusions on J.S.’s alleged OCD behaviour and the fact that J.S. acknowledged being organized and neat. In particular, the Member stated that because of J.S.’s OCD behaviours, B. should spend the same amount of time as currently permitted, or less, with J.S.

B. CONDUCT WITH RESPECT TO CLIENT R.S. IN APRIL 2015

1. Following their separation, client R.S. and his former spouse were attempting to agree on a parenting plan for their five children, and were referred to the Member by their legal representatives. They met with the Member on or about April 9, 2015. This was their first and only meeting with the Member and lasted approximately four hours prior to the attendance of the lawyers, who participated in mediation with the Member for the remainder of the business day.
2. During that meeting, the Member controlled the conversation significantly and spoke at length about the consultation process, his own experience and accomplishments, as well as the court process. As a result, a fairly significant amount of the consultation process was not used for assessment purposes. If the Member were to testify, he would state that he discussed his experience as part of the informed consent process, and that the court process was a relevant topic because it is an alternative to mediation. Following this discussion, the Member spent the remainder of the consultation session gathering information from the parties to assist them in their consultation. As a result of the information gathered, the Member offered guidance and assisted the parties to negotiate a parenting plan and to settle the matter, and the parties ultimately reached an agreement.
3. The Member offered opinions about R.S. and his children based on the discussions he had with the parties at a single meeting with R.S. and his former spouse. After R.S. informed the Member that he liked to drink beer recreationally (approximately 35 drinks weekly), and after this issue was discussed, the Member opined that R.S. had a great deal of stress in his life and would come home and drink at the end of the day, while his ex-wife sheltered their children from R.S. The Member advised R.S. of information pertaining to alcoholism, from both a physiological perspective and a psychosocial perspective. The information was provided on the basis of R.S.’s reported alcohol consumption and scientific literature. The Member explained to R.S. the effects of drinking, including that he would not be present when home with his family. The Member referred to drinking at this level as “abusive drinking”, and referred to R.S. as an “absent alcoholic” and a “physio/social alcoholic”. The Member also stated that R.S. was at an “astronomical risk of health issues,” including B12 deficiency, dementia, and Korsakoff syndrome.
4. If the Member were to testify, he would state that he explained to R.S. and his former spouse that based on scientific literature, a person who drank 35 alcoholic beverages a week would fit the criteria for an abusive drinker and that drinking this quantity of alcohol can lead to health risks, but that he did not intend to label R.S. as an alcoholic.
5. The Member stated that he believed the marital breakdown was attributable to R.S.’s drinking and stated that, if R.S. consumed 35 alcoholic beverages a week, he could not have been the kind of parent he should have been. The Member identified this concern to R.S. without speaking to R.S.’s children. If the Member were to testify, he would state that he was attempting to discuss the role that alcoholism can play in marital breakdown and parenting.
6. The Member made various comments about R.S.’s children, whom he did not meet, that were not based on a credible body of social work knowledge and/or were not based on sufficient information. In particular, the Member stated that:
   1. All five of R.S.’s children were at risk of becoming alcoholics given the description provided by R.S. of his own alcohol consumption;
   2. R.S.’s 10 and 12 year old daughters were at great risk of promiscuity, as they would realize that they can obtain attention in this way that they are missing from their parents “with their breasts and vaginas”;
   3. R.S.’s 17 year-old daughter was a “symptom bearer” who was acting out the family stress and would be at risk of engaging in promiscuous behaviour within the next few years;
   4. R.S. would be at risk of having no relationship with his adult children.

If the Member were to testify, he would state that he was speaking about the risks that R.S’s children would face as a result of R.S.’s alcohol consumption, rather than conclusions about R.S.’s children, whom he had not met. However, the Member acknowledges that he did not make this sufficiently clear.

C. CONDUCT WITH RESPECT TO CLIENT T.M. AND HER FORMER SPOUSE BETWEEN APRIL 2015 AND SEPTEMBER 2015

1. In or about April 2015, client T.M. and her former spouse, D.P., retained the Member as a mediator to assist in establishing a parenting plan for their five year-old daughter.
2. The contract the Member had T.M. and D.P. sign indicated that “[p]arents may be seen together or separately depending on the level of conflict and matters of concern. If seen together, the mediator can separate the participants when necessary and move between separate rooms if required.”
3. In her initial call with the Member, T.M. repeatedly expressed concerns about meeting in the same room as D.P., due to the high level of conflict in their separation. In response, the Member indicated that because D.P. had not physically abused her, he recommended that he meet with them jointly. Although T.M. was reluctant to proceed on that basis, she ultimately agreed to do so after her legal advisor informed her that it would not help her case if she did not agree to participate in the mediation. If the Member were to testify, he would state that he had interviewed both T.M. and D.P. to screen for risk if the mediation was conducted jointly, and he explained to T.M. that the mediation was much more likely to be successful if it was conducted jointly, and that he strongly encouraged T.M. to agree to a joint mediation. He would further testify that it was not his intention to present a joint mediation as the only option, but that he may have been construed as saying this.
4. T.M. and D.P.’s first and only meeting with the Member was on May 11, 2015, when they attended for a three-hour session. The Member spent much of the first hour speaking about his credentials, experience, and accomplishments, the informed consent process, and the court process, and spent the remaining time speaking with T.M. and D.P. about their problems. During the mediation, D.P. indicated that he was under significant stress and pressure, both financially and in his personal life. For reasons unknown, D.P. subsequently died by suicide on May 12, 2015.  If the Member were to testify, he would state that he referenced his experience and credentials to qualify himself as their mediator and to obtain the informed consent of the parties.
5. In the course of the session, the Member used inappropriate and insulting language with both T.M. and D.P.
6. The Member offered opinions about T.M. and D.P.’s five year-old daughter, T., that were not supported by a credible body of social work knowledge and/or were not based on direct observation (given that the Member had never met T.). In particular, on more than one occasion, the Member stated that T. was almost certain to die by suicide by the age of 16 because of the conflict in T.M. and D.P.’s relationship, and that it would be T.M. and D.P.’s fault. If the Member were to testify, he would state that he did not intend to suggest that T. was going to die by suicide, but that if the conflict in T.M. and D.P.’s relationship continued, she was at a risk of death by suicide.
7. When the Member was scheduling a follow-up appointment with T.M. and D.P., T.M. asked that the appointment be scheduled during the day because she had safety concerns about being out alone at night, whereas D.P. requested that appointments be scheduled during the evening. In order to present a compromise, the Member stated that they would alternate between daytime and evening appointments and that T.M. could bring a safety person to accompany her to the appointment. The parties scheduled the next session in the early evening when it would be light out when they left the session. If the Member were to testify, he would state that he understood that T.M. and D.P. were ultimately agreeable to this compromise between their appointment time preferences.

D. CONDUCT WITH RESPECT TO CLIENT K.M. BETWEEN APRIL 2013 AND FEBRUARY 2015

1. Client K.M. and her ex-husband J.K. retained the Member as a mediator/arbitrator to assist in resolving their disagreement over custody and access arrangements for their daughter O., who was eight at the time they retained the Member.
2. Prior to their first meeting with the Member, the Member conducted a screening interview by telephone. During this interview, the Member conducted a domestic violence and power imbalance screening, but focused only on whether there had been physical violence in the relationship. K.M. informed the Member that although there had not been physical violence, there had been emotional abuse. For this reason, she indicated that she was not comfortable meeting in the same room as J.K. The Member informed her that mediations were much more likely to succeed if conducted jointly.
3.  J.K. and K.M. participated in several mediation sessions with the Member over a long-term basis, pursuant to which the Member would remain available to the parties to assist in resolving issues as they arose. On at least two additional occasions over the course of the Member’s professional relationship with her, K.M. reiterated her concerns of emotional abuse and power imbalances. In both instances, the Member informed K.M. that she would need to be present for the upcoming mediation session, which would occur jointly. If the Member were to testify, he would state that if K.M. indicated that she would not attend a mediation session, he would explain the consequences of that decision to her (i.e. termination of mediation session and proceeding to court).
4. The Member dominated some sessions by doing most of the talking. At times, he spoke to K.M. condescendingly, raised his voice at her, cut her off, and precluded her from presenting her views. On July 30, 2014, the Member required K.M. to leave in the middle of the session. The Member also blamed K.M. for many of the problems in O.’s relationship with J.K. If the Member were to testify, he would state that he viewed his role as including holding the parents accountable to one another and to the terms of the parenting plan and that he believed K.M. was undermining O.’s relationship with J.K. and that he sought to hold her accountable for this, but recognizes that his behaviour towards K.M. was improper.
5. During the Member’s sessions with K.M. and J.K., the Member reached conclusions about their daughter that were not supported by a credible body of social work knowledge and/or were not based on sufficient information or observation. In particular, the Member dismissed K.M.’s concern that her daughter needed counselling to deal with anxiety. On one occasion, the Member stated that if K.M.’s daughter saw a counsellor at her young age, when she was older and in a serious relationship, her partner would judge her and wonder what was wrong with her to have seen a counsellor as a child. The Member also concluded that K.M.’s daughter was presenting as a “parentified child” after the first or second session and later concluded that she would grow up to be a narcissist. The Member reached these conclusions after the third session with K.M. and J.K., and a total of 12.5 hours with the clients, but without having met K.M.’s daughter or spoken to any of her teachers, other family members, or family friends about O. If the Member were to testify, he would state that in addition to the aforementioned statements he made regarding counselling for O., that he was concerned counseling in the circumstances could be harmful to O. The Member would further testify that he conveyed a number of harmful effects that could result from counselling and that his opinion that counselling was not appropriate was based on all of these potentially harmful effects.
6. O. had resided primarily with K.M. since K.M. and J.K.’s separation in 2005. In the Member’s meeting with K.M. and J.K. on or about November 12, 2014, J.K. indicated that he wanted to remove O. from K.M.’s care and/or to prevent K.M. from having access to O. The Member threatened to remove O. from K.M.’s care and then scheduled the issue of O.’s residency for a day-long arbitration session to be held on January 20, 2015. In dealing with this issue, the Member:

a. Refused to change the arbitration date when K.M.’s lawyer indicated that he would be out of the country on the scheduled date;

b. Scheduled the arbitration in a manner that did not allow sufficient time for K.M. to prepare; and

c. Indicated that the Member would rule in favour of J.K. on the residency issue before the arbitration had begun.

1. K.M. filed an application with the Ontario Superior Court of Justice to remove the Member as the mediator/arbitrator.  On February 17, 2015, Justice [“G”] issued a decision removing the Member as the arbitrator on the issue of O.’s residency and as the mediator/arbitrator under the agreement between K.M. and J.K. on the basis that:

a. The Member’s actions created a reasonable apprehension of bias against K.M.;

b. The Member had made several statements suggesting he had already made up his mind prior to the arbitration hearing;

c. The Member had not treated K.M. fairly;

d. The Member had violated ss. 19(1) and 19(2) of the Arbitration Act, 1991; and

e. The Member had not provided K.M. with a reasonable opportunity to present her case because he had not allowed her an adequate period of time to prepare, an adequate number of days of hearing to present the case, or the opportunity to have counsel.

37. In reaching these conclusions, Justice [“G”] reviewed a transcript of the Member’s November 12, 2014 meeting with K.M. and J.K., and raised a number of concerns about the Member’s actions, including:

a. that the Member made statements suggesting that he “had already made up his mind that [K.M.] had engaged in the alienating behaviour that she disputed, and … had made up his mind as to what he would do”;

b. that the Member refused to change an arbitration date (scheduled on short notice) to allow the attendance of K.M.’s counsel, despite the fact that a brief postponement would not have caused any prejudice; and

c. that the member engaged in an “unseemly rush to judgment” which would cause an informed person to think that it was more likely than not that the Member would not decide the matter fairly.

38. […]

ADMISSIONS OF PROFESSIONAL MISCONDUCT

39. The Member admits that by reason of engaging in the conduct outlined above, he is guilty of professional misconduct as set out in section 26(2)(a) and (c) of the Social Work and Social Service Work Act:

a. [deleted]

b. In that he violated Section 2.2 of the Professional Misconduct Regulation and Principle I of the Handbook (as commented on in Interpretation 1.5) with respect to client J.S. by failing to be aware of his values, attitudes, and needs and how these impacted on his professional relationship with clients;

c. [deleted]

d. In that he violated Section 2.2 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.1.1) with respect to client J.S. by failing to be aware of the extent and parameters of his competence and his professional scope of practice and to limit his practice accordingly; failing, if the client wished to continue the professional relationship, to ensure that (1) the services the Member provided were competently provided by seeking additional supervision, consultation, and/or education, and (2) that the services were not beyond his professional scope of practice;

e. In that he violated Section 2.2 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.1.4) by failing to ensure that any professional recommendations or opinions he provided were appropriately substantiated by evidence and supported by a credible body of professional social work knowledge;

f. In that he violated Sections 2.2 and 2.6 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.2.3) by using information obtained in the course of a professional relationship and using his professional position of authority to coerce, improperly influence, harass, abuse, or exploit a client/former client;

g. In that he violated Sections 2.2 and 2.36 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.2.8) by engaging in conduct or performing an act relevant to the practice of the profession that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, and by failing to avoid conduct in the practice of social work that could reasonably be perceived as reflecting negatively on the profession of social work;

h. [deleted]

i. [deleted]

j. [deleted]

k. In that he violated Section 2.5 of the Professional Misconduct Regulation by abusing a client verbally and emotionally.

l. [deleted]

m. [deleted]

9The Agreed Statement of Facts relating to the Second Notice of Hearing provided in relevant part as follows.

1. Now and at all times relevant to the allegations, Gary Direnfeld (the “Member”) was a registered social work member of the Ontario College of Social Workers and Social Service Workers (the “College”). At all relevant times, the Member carried on a private practice as a social worker in which he provided marital counselling, child custody and access assessments, parenting capacity assessments, and mediation/arbitration services to clients.

2. In December 2011, client G.M. and his ex-wife, T.C., retained the Member to act as a parenting coordinator concerning the parenting of their two children. A custody and access assessment had previously been conducted by a Dr. M. with respect to the family in June of 2011.

3. During his sessions with G.M. and T.C., the Member repeatedly used inappropriate and insulting language when speaking to them. When G.M. raised concerns regarding that language, the Member characterized himself as plain spoken, using strong language, and having a strong personal style.

4. In the summer of 2012, G.M. and his lawyer corresponded with T.C., T.C.'s lawyer and the Member, raising concerns about the Member’s performance of the role of parenting coordinator and the associated expense, which G.M. viewed as excessive in light of the limitations of that role. In particular, G.M. and/or his lawyer raised concerns that:

a. the Member was failing to have regard to the custody and access assessment of Dr. M. or to ensure compliance with the parties' Minutes of Settlement (dated January 8, 2010) and the related Court Order concerning custody and access arrangements, and

b. the Member was instead providing counseling to the parties.

5. If the Member were to testify, he would say that his role as a parenting coordinator included an assessment and coaching function and that G.M. received independent legal advice with regards to the terms of the Parenting Coordinator Agreement. Paragraph 6 of the Parenting Coordinator Agreement provides as follows:

The Parenting Coordinator’s role includes an assessment function and the Parenting Coordinator may provide consultation to the parents and may coach and educate them about ways to better communicate with each other, with the ultimate goal of helping the parents resolve issues amicably and efficiently on their own, without having to involve the Parenting Coordinator.

6. On or about August 22, 2012, the Member responded to these concerns by sending a letter to the parties and their respective counsel, indicating that G.M. had escalated his "untoward behaviour" and was attempting to "blackmail" and "threaten to have [the Member] resign". In that letter, the Member:

a. Quoted paragraphs from a 1993 Report of Children Witnessing Wife Assault Working Group, concerning the dynamic of power and control and the "resulting pervasive intimidation and fear", negatively influencing the family dynamic, which arises from the use of coercive/abusive disciplinary methods by fathers;

b. Relayed concerns expressed by T.C. about disruptive behaviour by the children upon returning from visits with G.M. and indicated that these reminded him of the quote referenced in (a) above;

c. Stated that it would be reasonable to be concerned that G.M.'s "excessive and extreme" behaviour and attitudes toward T.C. would "spill over to their children such that they too would need protection from his intensity and misperceptions";

d. Expressed concern that G.M. had "lost his senses";

e. Stated that he had "safety concerns at least from a psychological/emotional abuse perspective for [T.C.] and by extension, their children, as witnesses to their father's intensity and mother's emotional derailment by father"; and

f. Recommended that this matter be returned to court on an urgent basis and that the Court consider an interim order awarding sole custody of the children and primary residence of the children to T.C., with an order for supervised access or withholding access to G.M. until it could be determined that G.M. no longer posed a threat to T.C. and, by extension, their children.

7. Section 72 of the Child and Family Services Act, R.S.O. 1990, c. C.11, required the Member to make a report to a children’s aid society if he had reasonable grounds to suspect that a child was in need of protection. The Member did not forthwith report the concerns expressed in his August 22, 2012 letter and the information on which they were based to a children’s aid society.

8. Following the Member’s August 22, 2012 letter, T.C. brought a motion before the Ontario Superior Court of Justice (Family Court Branch), which was disposed of by order of the Honourable Justice [“L”], dated September 7, 2012. Justice “[L”] ordered, among other things, that the Member “shall have no involvement with the parties as mediator, parenting coordinator or any other role associated with issues between the parties” and directed the parties’ counsel to forward the Member’s letter of August 22, 2012 to the Catholic Children’s Aid Society (the “CCAS”) for their input. Upon learning of the order of Justice [“L”] the Member contacted CCAS to advise of his concerns respecting the safety of the children.

9. Counsel for G.M. forwarded the Member’s August 22, 2012 letter to the CCAS on or about September 11, 2012. The CCAS responded by letter dated October 4, 2012, declining to intervene.

10. On or about September 7, 2012, the Member did report his concerns to CCAS as he indicated he would.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

11. The Member admits that by reason of engaging in the conduct outlined above, he is guilty of professional misconduct as set out in section 26(2)(a) and (c) of the Social Work and Social Service Work Act:

a. In that he violated Section 2.2 of the Professional Misconduct Regulation and Principle I of the Handbook (as commented on in Interpretation 1.5) with respect to client G.M. by failing to be aware of his values, attitudes, and needs and how these impacted on his professional relationship with clients.

b. In that he violated section 2.2 of the Professional Misconduct Regulation and Principle I of the Handbook (as commented on in Interpretation 1.6) with respect to client G.M. by failing to distinguish his needs from those of the client to ensure that, within professional relationships, clients’ needs and interests remained paramount.

c. In that he violated Sections 2.2 and 2.6 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.2.3) by using information obtained in the course of a professional relationship and/or using his professional position of authority to coerce, improperly influence, harass, abuse, or exploit a client/former client.

d. In that he violated Sections 2.2 and 2.36 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.2.8) by engaging in conduct or performing an act relevant to the practice of the profession that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, and/or by failing to avoid conduct in the practice of social work that could reasonably be perceived as reflecting negatively on the profession of social work.

e. In that he violated Section 2.5 of the Professional Misconduct Regulation by abusing a client verbally.

f. [deleted]

g. In that he violated Section 2.29 of the Professional Misconduct Regulation with respect to client G.M. by contravening a federal, provincial or territorial law or a municipal by-law in circumstances in which the purpose of the law is to protect public health.

Decision of the Panel

10Having considered the Member’s admissions, the evidence contained in the Agreed Statements of Facts, and the submissions of counsel, the Panel found that the Member committed the acts of professional misconduct alleged in the Notices of Hearing, as modified in the Agreed Statements of Facts, except for those allegations the College requested and the Panel granted leave to be withdrawn.

Reasons for Decision

11After careful consideration, the Panel found that the Agreed Statement of Facts proved on a balance of probabilities each of the allegations against the Member.

The First Notice of Hearing, Exhibit 1

12With respect to allegation (b), the Panel found that the Member violated Section 2.2 of Professional Misconduct Regulation and Principle I of the Handbook (as commented on in Interpretation 1.5) with respect to client J.S by failing to be aware of his values, attitudes, and needs and how these impacted on his professional relationship with his client. The needs and interests of the client must remain central in the professional relationship. The facts prove two instances in which the Member in his professional relationship with his client J.S. failed to maintain the standards set out in Principle I and Interpretation 1.5.

13First, the Member had his client J.S. sign an agreement “not [to] bring any actions for damages or any other claims of any kind or character” against the Member for any acts or omissions in the course of carrying out this duties and waiving the client’s rights to address any “issue” against the Member “through any Court or any other process not here specifically contemplated”. In doing so, the Member put his own needs and interests ahead of those of his client and was not aware of how his own needs impacted on his professional relationship with his client, contrary to Principe I of the Handbook.

14Second, the Member’s comments to J.S. to the effect that “men do not have the same bond with a child that a mother has, because the mother is the one who carries the child for nine months and breastfeeds the child” and that “the breakup of J.S.’s marriage was harder on J.S.’s ex-wife than it would be on J.S because his ex-wife was female and the primary caregiver and had a stronger bond with their child” (Agreed Statement of Facts, para. 11) reveal certain values and attitudes of the Member, which he allowed to negatively impact his professional relationship with J.S.

15With respect to allegation (d), the Panel found that the Member violated section 2.2 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.1.2) with respect to his clients J.S. and R.S. by failing to be aware of the extent of parameters of his competence and professional scope of practice and to limit his practice accordingly; failing to inform his client of the option to be referred to another professional when the client’s needs fell outside of his usual area of practice; and failing, if the client wished to continue the professional relationship, to ensure that (1) the services he provided were competently provided by seeking additional supervision, consultation, and/or education, and (2) that the services were not beyond his professional scope of practice.

16With respect to client J.S., during more than one session with J.S. the Member informed the client that he believed J.S. had “OCD” symptoms and that his OCD would affect his parenting. The Member indicated that if he did not get help for his OCD, J.S. would never get more time with his son. “OCD”, or obsessive-compulsive disorder, is a mental health disorder recognized in the Diagnostic and Statistical Manual of Mental Disorders (the “DSM-IV”) published by the American Psychiatric Association. Social workers do not have the knowledge or skillset to diagnose disorders classified in the DSM-IV . The Member did not engage in the process of self-reflection or seek consultation regarding the services he was providing to J.S. in connection with what he believed to be “OCD symptoms”.

17With respect to client R.S., the Member offered opinions about R.S. and his children based on the discussions had with parties at a single meeting with R.S. and his former spouse. After R.S. informed the Members that he liked to drink beer recreationally (approximately 35 drinks weekly), and after this issues was discussed, the Member expressed the opinion that R.S. had a great deal of stress in his life and could come home and drink a the end of the day while his ex-wife sheltered their children from R.S. The Member advised R.S. of information pertaining to alcoholism, from both a physiological perspective and a psychosocial perspective. The information was provided on the basis that of R.S.’s reported alcohol consumption and scientific literature. The Member explained to R.S. the effects of drinking, including that he would not be present when home with his family. The Member referred to drinking at this level as “abusive drinking” and referred to R.S. as an “absent alcoholic” and a “physio/social alcoholic”. The Member also stated that R.S. was at an “astronomical risk of health issues” including B12 deficiency, dementia, and Korsakoff syndrome. It was outside of the Member’s professional scope of practice to describe R.S. as an alcoholic or to opine on the health risks to R.S. of his alcohol consumption.

18With respect to allegation (e), the Panel found that the Member violated section 2.2 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.1.4) by failing to ensure that any professional recommendations or opinions he provided were appropriately substantiated by evidence and supported by a credible body of professional social work knowledge. Specifically:

a. With respect to client J.S., the Member repeatedly used the term “OCD” and indicated that J.S. had many traits that are possessed by individuals with OCD. Although he indicated he could not diagnose J.S. with OCD, the Member based his conclusions on J.S.’s alleged OCD. In particular, the Member concluded that because of J.S.’s OCD, B.S. should spend the same amount of time as currently permitted, or less, with J.S.

b. J.S. expressed to the Member that it was important to him that B. was enrolled in sports, as he felt they offered several benefits to children. Based on brief observations of B., B.’s expressed interest in fine motor skill activities (such as colouring), and a physical “test”, which involved having B. hop on one leg, the Member told J.S. that B. had better fine motor skills than gross motor skills and that he would not excel at sports, and he encouraged the parents to enroll B. in the arts instead. This test and inferences drawn by the Member about B.’s abilities were not supported by a credible body of social work knowledge.

c. The Member made various comments about R.S.’s children, whom he did not meet, that were not based on a credible body of social work knowledge and/or were not based on sufficient information. In particular, the Member stated that:

i. All five of R.S.’s children were at risk of becoming alcoholics given the description provided by R.S. of his own alcohol consumption;

ii. R.S.’s 10- and 12-year old daughters were at great risk of promiscuity, as they would realize that they can obtain attention in this way that they are missing from their parents “with their breasts and vaginas”.;

iii. R.S.’s 17 year old daughter was a “symptom bearer” who was acting out the family stress and would be at risk of engaging in promiscuous behaviour within the next few years; and

iv. R.S. would be at risk of having no relationship with his adult children.

d. The Member offered opinions about T.M. and D.P.’s five year old daughter, T., that were not supported by a credible body of social work knowledge and/or were not based on direct observation (given that the Member had never met T.). In particular, on more than one occasion, the Member stated that T. was almost certain to die by suicide by the age of 16 because of the conflict in T.M. and D.P.’s relationship, and that it would be T.M. and D.P.’s fault.

e. The Member dismissed the request made by K.M. for O. to receive counselling to deal with anxiety. The Member responded that it was not necessary for children to speak to counsellors and that if O. saw a counsellor at her your age, when she was older and in a serious relationship, her partner would judge her and wonder what was wrong with her to have seen a counsellor when she was younger.

In these dealings with his clients, the Member failed to ensure that the recommendations or opinions he was providing were appropriately substantiated by evidence and supported by a credible body of professional social work knowledge.

19With respect to allegation (f), the Panel found that the Member violated section 2.2 and 2.6 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.2.3) by using information obtained in the course of a professional relationship and/or using his professional position of authority to coerce, improperly influence, harass, abuse, or exploit a client/former client. During the course of mediation the Member acted unprofessionally by verbally, psychologically, and/or emotionally abusing client T.M and her former spouse D.P by repeatedly using foul language, telling D.P to “shut up” and/or to “shut his mouth”, informing T.M. that she was “bitch”, making disparaging comments about T.M and D.P.’s parenting skills, stating that they were not even qualified to babysit the Member’s dog, indicating on more than one occasion that T.M and D.P’s five year-old daughter was almost certain to commit suicide by the age of 16 because of conflict in T.M. and D.P.’s relationship, and stating that it would be T.M. and D.P’s fault when their daughter committed suicide, but that he could not worry about this because it was not his job. Throughout these interactions, the Member did not fully acknowledge the clients’ voices. These facts establish that the Member used his professional position of authority to harass or abuse his clients. These same actions by the Member constitute a contravention of section 2.5 of the Professional Misconduct Regulation as set out in allegation (k). These abusive comments on the Member’s part showed a serious disregard for the clients’ well-being. The conduct reflects poorly on the profession.

20With respect to allegation (g), the Panel found that through his actions as described in paragraphs 12, 13, 14, 15, 16 17, and 18 of these Reasons, the Member engaged in conduct or performed an act relevant to the practice of the profession that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, which is professional misconduct pursuant to section 2.36 of the Professional Misconduct Regulation.

21In addition to the conduct described above, the Panel notes the following actions by the Member that are unacceptable and failed to live up to the standards expected of a professional social worker and would be regarded as disgraceful, dishonourable or unprofessional:

a. When providing services to with K.M. and J.K. the Member came to conclusions based on insufficient information and behaved unprofessionally. The Member dominated the meetings, drew conclusions about K.M. and J.K.’s problems based on insufficient information, and drew conclusions about their daughter O. without having met her and without fully investigation the situation and ensuring he had all relevant information. He also spoke to K.M. condescendingly, cut her off, did not permit her to present her views, raised his voice when speaking to her, prevented her from advocating for her daughter, and blamed her solely for the problems in O’s relationship with J.K. Finally, he required K.M. to leave one session and threated to remove O. from K.M.’s care.

b. J.S granted permission for the Member to contact his girlfriend to obtain information about his parenting of and relationship with his son. However, the Member instead discussed with J.S’s girlfriend his own views about J.S. and his relationship with his ex-wife. During that conversation with J.S’s girlfriend, the Member cast J.S. in a negative light and suggested that living with and/or being married to J.S. would be difficult because J.S. liked to keep his house extremely neat. He also suggested that J.S.’s neatness had led to serious altercations between J.S. and his ex-wife. During this phone call the Member did not ask J.S.’s girlfriend about J.S.’s parenting, nor did he provide her with the opportunity to share her views on the subject.

c. K.M. filed an application with the Ontario Superior Court of Justice to remove the Member as the mediator/arbitrator. Justice [“G”] issued a decision removing the Member as mediator/arbitrator for a number of reasons including that his actions created a reasonable apprehension of bias against K.M., he had violated ss. 19(1) and 19(2) of the Arbitration Act, 1991, S.O. 1991, c. 17, and he had not provided K.M. with a reasonable opportunity to present her case.

22Such conduct reflects negatively on the social work profession and undermines the public’s confidence in the profession.

Second Notice of Hearing, Exhibit 2

23With respect to allegation (a), the Panel found that the Member violated section 2.2 of the Professional Misconduct Regulation and Principle I of the Handbook (as commented on in Interpretation 1.5) with respect to client G.M. by failing to be aware of his values, attitudes, and needs and how these impact on his professional relationship with his clients. The Member sent a letter to G.M. and T.C., and their respective counsel, indicating that G.M. had escalated his “untoward behavior” and was attempting to “blackmail” and “threaten to have [the Member] resign”. In that letter the Member quoted paragraphs from a 1993 Report of Children Witnessing Wife Assault Working Group concerning the dynamic of power and control, and the “resulting pervasive intimidation and fear” that negatively influences the family dynamic, which arises from the use of coercive or abusive disciplinary methods by fathers. The Member relayed concerns expressed by T.C. about disruptive behaviors by the children upon returning from visits with G.M. and indicated that these reminded him of the quote referenced above. These facts demonstrate that the Member failed to be aware of his own values, attitudes and needs, and how they impact on his professional relationship with G.M., by showing a blatant disregard for the dignity and self-worth of his client G.M.

24With respect to allegation (b), the Panel found that the Member violated section 2.2 of the Professional Misconduct Regulation and Principle I of the Handbook (as commented on in Interpretation 1.6) with respect to client G.M. by failing to distinguish his needs from those of his client, G.M., to ensure that, within the professional relationship, the client’s needs and interests remained paramount. G.M.’s lawyer raised concerns about the Member’s performance in the role of parenting coordinator and the associated expense, which G.M. viewed as excessive in light of the limitations of that role. In particular, G.M.’s lawyer raised concerns that the Member was failing to have regard to the custody and access assessment of Dr. M. and to ensure that the parties were complying with the Minutes of Settlement and related Court Order concerning custody and access arrangements, and that the Member was instead providing counselling to the parties. Once those concerns were raised, the Member sent a letter criticizing G.M. instead of responding to the concerns that he was providing services beyond the scope of his role as parenting coordinator. In providing counselling to the clients instead of carrying out the more limited mandate that he was given, and then responding as he did once the lawyer raised the concerns, the Member failed to distinguish his needs from those of G.M. and to ensure that the clients’ needs remained paramount.

25With respect to allegation (c), the Panel found that the Member violated section 2.2 and 2.6 of the Professional Misconduct Regulation and Principle II of the Handbook (as commented on in Interpretation 2.2.3) by using information obtained in the course of his professional relationship and/or using his professional position of authority to coerce, improperly influence, harass, abuse, or exploit his client. The Member’s letter of August 22, 2012 made a number of statements that used information he had obtained throughout the course of his involvement with his clients and had the effect of influencing, harassing and exploiting G.M., especially by recommending that the matter be returned to the court asking that sole custody of the children be granted to T.C.

26With respect to allegation (e), the Panel found that the Member violated section 2.5 of the Professional Misconduct Regulation by abusing his clients G.M. and T.C. verbally. During sessions with G.M. and T.C. the Member repeatedly used inappropriate and insulting when speaking with them. The clients raised concerns with the Member regarding his language. Although he characterized himself as plain spoken, using strong language and having a strong personal style, the conduct constitutes verbal abuse towards the client. The Member showed blatant disregard and disrespect for the clients by engaging in the use of foul language, name calling and degrading remarks.

27With respect to allegation (g), the Panel found that the Member violated section 2.29 of the Professional Misconduct Regulation with respect to client G.M. by contravening a federal, provincial or territorial law or municipal by-law in circumstances in which the purpose of the law is to protect public health. The Member contravened a provincial law, namely, the Child and Family Services Act, section 72 of which requires that every person who has reasonable grounds to suspect that a child is or may be in need of protection must “forthwith” report the suspicion and the information on which it is based to a Children’s Aid Society. The Member expressed concerns about the safety of G.M.’s children in his letter of August 22, 2012, but did not report the concerns and the information on which they were based to a Children’s Aid Society until September 7, 2012, which is not “forthwith”. The purpose of the Child and Family Services Act is “to protect public health”, which is a required element under section 2.29 of the Regulation. Subsection 1(1) of the Child and Family Services Act provides that the “paramount purpose” of that Act is to promote the bets interests, protection and well being of children. Section 72 of the Child and Family Services Act furthers that purpose by ensuring that suspicions, based on reasonable grounds, that a child is in need of protection are reported forthwith so that risks to the health or safety of a child can be investigated and dealt with promptly. That law, which protects the health and safety children, has as its purpose “to protect public health”. Accordingly, the Panel found that the Member violated section 2.29 of the Professional Misconduct Regulation.

28With respect to allegation (d), the Panel found that the Member’s conduct in relation to client G.M., having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional which constitutes professional misconduct pursuant to 2.36 of the Professional Misconduct Regulation. The Member’s conduct in his practice of social work with respect to client G.M. could reasonably be perceived as reflecting negatively on the profession of social work. The Member’s conduct was unacceptable and failed to live up to the standards expected of a member of this College. The seriousness of the Member’s conduct is reflected in Justice [“L’s”] order that the Member “shall have no involvement with the parties as a mediator, parenting coordinator or any other role associated with issues between the parties” and her direction that the parties’ counsel forward his letter of August 22, 2012 to the CCAS. The Member’s conduct brings into question his ability to fulfill his professional obligations. It shames the Member and undermines the public’s expectations of the profession.

Penalty Submissions

29The parties were in agreement on the issue of penalty. They presented to the Panel a Joint Submissions as to Penalty (“Joint Submission”) asking this Panel make an order as follows.

1. The Member shall be reprimanded by the Discipline Committee and the fact of the reprimand be recorded on the register.

2. The Registrar shall be directed to suspend the Member's Certificate of Registration for a period of three (3) months, the first two (2) months of which shall be served commencing on June 27, 2019. The remaining one (1) month of the suspension shall be remitted if, on or before the two (2) year anniversary of the Discipline Committee’s Order herein, the Member provides evidence, satisfactory to the Registrar of the College, of compliance with the terms and conditions imposed under paragraph 3 as set out below.  If the Member fails to comply with those terms and conditions, the Member shall serve the remaining one (1) month of the suspension, which shall be served immediately following the two (2) year anniversary of the Discipline Committee’s Order herein.1

3. The Registrar shall be directed to impose a term, condition and limitation on the Member’s Certificate of Registration, to be recorded on the Register:

a. Requiring the Member to complete three (3) sessions with an Expert who is approved by the Registrar and who has expertise in professional regulation and in the issues regarding the Member’s behaviour raised in the two Notices of Hearing. The sessions with the Expert shall be completed at the Member’s own expense and within two (2) years of the Discipline Committee’s order. The sessions with the Expert shall address the following:

i. The application of the College’s Standards of Practice, the scope of practice for social work, and the relevant legislation and regulations to issues of:

1. Communicating with clients;

2. Respecting and prioritizing clients’ needs; and

3. Limits on the scope of practice for social work.

ii. The Member’s understanding of the College’s Standards of Practice, scope of practice for social work, and the relevant legislation and regulations referred to in paragraph 3(a)(i) above;

iii. The Member’s conduct as described in the two Notices of Hearing (and in any Agreed Statement of Facts reached by the parties);

iv. The consequences of that conduct to clients, the profession, and to himself;

v. Strategies for preventing the aforementioned conduct from occurring again; and

vi. The Member’s responsibilities as a member of a self-regulated profession.

b. Requiring the Member to provide to the Expert the Notice of Hearing as well as the Agreed Statement of Fact and Joint Submission as to Penalty and provide written confirmation, signed by the Expert, of receipt of these documents to the Registrar within 15 days of the beginning of the sessions referred to above. The Member shall also provide a written direction to the Expert to complete and forward a written report to the Registrar within forty-five (45) days from the date of the last mentoring session. The Expert’s report (“Report”) shall:

i. confirm the dates of all sessions attended by the Member;

ii. confirm that the Standards of Practice, scope of practice for social work, legislation, and regulations referred to above were covered with the Member; and,

iii. include a summary of the substance of the Expert’s work with the Member.

c. Requiring the Member to, at his own expense, participate in and successfully complete two continuing education courses that are approved by the Registrar, one related to mindfulness in the therapeutic relationship, and one related to ethical decision making. The Member shall complete these courses within twelve (12) months of the Discipline Committee’s order; and

d. Prohibiting the Member (except with the prior written consent of the Registrar) from applying under s. 29 of the Social Work and Social Service Work Act, 1998, for the removal or modification of the terms, conditions, or limitations imposed on his certificate of registration for a period of two (2) years from the date on which those terms, conditions, and limitations are recorded on the register.

4. The Discipline Committee’s finding and order (or a summary thereof) shall be published, in detail or in summary, with the name of the Member, online and/or in print, including, but not limited to, in the official publication of the College, on the College’s website, and on the College’s public register.

5. The Member shall pay costs to the College, forthwith, in the amount of five thousand dollars ($5,000.00).

30College counsel argued that the Joint Submission meets the College’s mandate to protect the public and maintain high standards of practice. The penalty sought is appropriate having regard to all of the circumstances of the case and to the principles of specific and general deterrence, as well as rehabilitation.

31The College submitted that the reprimand is appropriate, in that it allows the Discipline Committee to convey directly to the Member its concerns and disapproval of the Member’s conduct. The suspension of the Member’s certificate of registration is appropriate given the seriousness of the professional misconduct as admitted by the Member and found by the Panel. The terms, conditions and limitations serve the goal of remediation.

32College counsel identified both aggravating and mitigating factors in this case. The most significant aggravating factor in this case is the duration and scope of the behavior, together with the fact that the Member is a senior member of the profession. The mitigating factors include: (1) the Member does not have a prior history before the Discipline Committee, (2) the Member has admitted to having committed acts of professional misconduct, and (3) the Member has agreed to the Joint Submission.

33In his submissions in support of the Joint Submission, the Member’s counsel sought to provide some context for the Member’s conduct. All of the complaints that brought this matter to the Discipline Committee are in the context of high conflict custody and access disputes, or marital separation. It is a challenging area of practice and the Member’s role was not a traditional social work role (such as acting as a therapist or counsellor), but rather the role of mediator, arbitrator or assessor. There can be challenges and confusion as to the Member’s role as a social worker when he is serving as parenting coordinator, consultant, arbitrator or mediator.

34The Member’s counsel submitted that the Joint Submission meets the goals of penalty. It will deter Member from engaging in the same errors and the reprimand will provide the Panel an opportunity to convey its concern. He also noted that the course work component of the Joint Submission is intended to address each of the failings that brought to Member before the Discipline Committee.

Penalty Decision

35Having considered the findings of professional misconduct, the evidence and the submissions of the parties, the Panel accepts the Joint Submission and makes an order as follows.

1. The Member shall be reprimanded by the Discipline Committee and the fact of the reprimand be recorded on the register.

2. The Registrar is directed to suspend the Member’s Certificate of Registration for a period of three (3) months, the first two (2) months of which shall be served commencing on June 27, 2019. The remaining one (1) month of the suspension shall be remitted if, on or before the two (2) year anniversary of the Discipline Committee’s Order herein, the Member provides evidence, satisfactory to the Registrar of the College, of compliance with the terms and conditions imposed under paragraph 3 as set out below. If the Member fails to comply with those terms and conditions, the Member shall serve the remaining one (1) month of the suspension, which shall be served immediately following the two (2) year anniversary of the Discipline Committee’s Order herein.1

3. The Registrar is directed to impose a term, condition and limitation on the Member’s Certificate of Registration, to be recorded on the Register:

a. Requiring the Member to complete three (3) sessions with an Expert who is approved by the Registrar and who has expertise in professional regulation and in the issues regarding the Member’s behaviour raised in the two Notices of Hearing. The sessions with the Expert shall be completed at the Member’s own expense and within two (2) years of the Discipline Committee’s order. The sessions with the Expert shall address the following:

i. The application of the College’s Standards of Practice, the scope of practice for social work, and the relevant legislation and regulations to issues of:

1. Communicating with clients;

2. Respecting and prioritizing clients’ needs; and

3. Limits on the scope of practice for social work.

ii. The Member’s understanding of the College’s Standards of Practice, scope of practice for social work, and the relevant legislation and regulations referred to in paragraph 3(a)(i) above;

iii. The Member’s conduct as described in the two Notices of Hearing (and in any Agreed Statement of Facts reached by the parties);

iv. The consequences of that conduct to clients, the profession, and to himself;

v. Strategies for preventing the aforementioned conduct from occurring again; and

vi. The Member’s responsibilities as a member of a self-regulated profession.

b. Requiring the Member to provide to the Expert the Notice of Hearing as well as the Agreed Statement of Fact and Joint Submission as to Penalty and provide written confirmation, signed by the Expert, of receipt of these documents to the Registrar within 15 days of the beginning of the sessions referred to above. The Member shall also provide a written direction to the Expert to complete and forward a written report to the Registrar within forty-five (45) days from the date of the last mentoring session. The Expert’s report (“Report”) shall:

vii. confirm the dates of all sessions attended by the Member;

viii. confirm that the Standards of Practice, scope of practice for social work, legislation, and regulations referred to above were covered with the Member; and,

ix. include a summary of the substance of the Expert’s work with the Member.

c. Requiring the Member to, at his own expense, participate in and successfully complete two continuing education courses that are approved by the Registrar, one related to mindfulness in the therapeutic relationship, and one related to ethical decision making. The Member shall complete these courses within twelve (12) months of the Discipline Committee’s order; and

d. Prohibiting the Member (except with the prior written consent of the Registrar) from applying under s. 29 of the Social Work and Social Service Work Act, 1998, for the removal or modification of the terms, conditions, or limitations imposed on his certificate of registration for a period of two (2) years from the date on which those terms, conditions, and limitations are recorded on the register.

4. The Discipline Committee’s finding and order (or a summary thereof) shall be published, in detail or in summary, with the name of the Member, online and/or in print, including, but not limited to, in the official publication of the College, on the College’s website, and on the College’s public register.

5. The Member shall pay costs to the College, forthwith, in the amount of five thousand dollars ($5,000.00).

Reasons for Penalty Decision

36The Panel recognized that the penalty should maintain high professional standards, preserve public confidence in the ability of the College to regulate its members, and, above all, protect the public. This is achieved through a penalty that considers the principles of general deterrence, specific deterrence and, where appropriate, rehabilitation and remediation of the Member’s practice. The Panel also considered the principle that the Panel should accept a joint submission on penalty unless it is contrary to the public interest and would bring the administration of justice into disrepute.

37The Panel concluded that the jointly proposed penalty falls within the acceptable range of penalty for professional misconduct of this nature. The Panel considered the aggravating and mitigating factors submitted by both counsel. The Panel noted the fact that the Member cooperated with the College, has agreed to the proposed penalty, and has had no prior complaints during his lengthy professional social work career. By agreeing to the facts and proposed penalty, the Member has accepted responsibility for his actions and avoided the inconvenience and expense of a contested hearing.

38The elements of the jointly proposed penalty achieve the objective of general deterrence. The suspension, reprimand and publication will deter other members of the profession from engaging in similar misconduct. Those same features of the penalty will also have a specific deterrent effect, deterring the Member from engaging in similar misconduct. Finally, the terms, conditions and limitations will help protect the public and improve the Member’s practice through remediation and education.

39The Panel considers that the proposed penalty is reasonable in light of the goals and principles of maintaining high professional standards, preserving public confidence in the College’s ability to regulate its members and, above all, protecting the public. For these reasons the Panel found no reason to depart from the Joint Submission of Penalty.

I, Rita Silverthorn, sign this decision as chairperson of the Panel and on behalf of the Panel members listed below.

Date:

Signed:

Rita Silverthorn, Chair

Amanda Bettencourt

Lisa Kostakis

1By-law 24, as amended by By-law Nos. 32 and 48 and revoked effective July 1, 2008 by By-law 66, continues to apply to conduct which occurred prior to July 1, 2008.

1 For greater clarity, the terms and conditions imposed under paragraph 3 hereof will be binding on the Member regardless of the length of suspension served and the Member may not elect to serve the full suspension in place of performing those terms and conditions. If the Member fails to comply with the terms and conditions, the Registrar may refer the matter to the Executive Committee of the College. The Executive Committee, pursuant to its authority, may take such action as it deems appropriate, which may include referring to the Discipline Committee allegations of professional misconduct arising from any failure to comply with the terms and conditions.

1 For greater clarity, the terms and conditions imposed under paragraph 3 hereof will be binding on the Member regardless of the length of suspension served and the Member may not elect to serve the full suspension in place of performing those terms and conditions. If the Member fails to comply with the terms and conditions, the Registrar may refer the matter to the Executive Committee of the College. The Executive Committee, pursuant to its authority, may take such action as it deems appropriate, which may include referring to the Discipline Committee allegations of professional misconduct arising from any failure to comply with the terms and conditions.