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Child And Family Review Board versus Childrens Aid Society of Algoma

Sunday, July 3, 2016 - CAS - Ano - Opposition to Children's Aid Societies aka CAS CPS, CFS, FACS, LCAS ...

 [1]        On February 12, 2016, the Board heard by teleconference a motion on jurisdiction raised by the Society. The Society’s position is that the Applicant, C.F., did not receive a service from it and as such is not entitled to make a complaint pursuant to section 68.1(4) 4 and 5 of the Child and Family Services Act, R.S.O. 1990, c.C.24, as amended (Act).

 

[2]        The Applicant is the father of two children who reside in the primary care of their mother.  The Applicant exercises access to the children.

 

[3]        The Applicant complained that he was not consulted by the Society or informed of decisions made by the Society with respect to a number of incidents between July 2011 and May 2014 involving his children and their mother which affected his interests as a parent. 

 

[4]        The Society’s position is that the Applicant is not a person who sought or received services from the Society during the report in November of 2013. The Society interpreted the application as referring only to that specific incident.  However, the Board disagrees with that position.  In his application, the Applicant stated that his complaint relates to the fact that he enquired about his children’s well-being, as their parent, during the period between 2011 and 2014.  The Board is satisfied that the Applicant sought services beyond making a report of concern and sought to receive a service from the Society.

 

ANALYSIS

[5]        The Applicant indicates that he called the Society regarding concerns about the care his children were receiving while in their mother’s home in July, August and November of 2011.  Additionally, he indicates that the Society was involved in ongoing services with his children in the spring of 2012.  The Applicant indicates that on November 26, 2013, his son was assaulted by the son’s mother and the Society was involved.  Finally, the Applicant indicates that he attended for mediation offered by a Society worker in May of 2014.

 

[6]        The Applicant complains that he was not consulted and informed regarding the wellbeing of his children or regarding any investigations of the concerns he reported to the Society.  The Applicant complains that as the non-abusive parent, he was never interviewed during any investigation relating to his reports as stated above.  The Applicant complains that, as a result, the investigations were incomplete and did not respect the Ministry Standards.  The Applicant also complained about other aspects of the investigation he feels were incomplete and not compliant with Ministry Standards such as a lack of unannounced visits at the children’s home and drug testing of the mother, amongst others.  The application clearly relates to more issues than the November 26, 2013 incident.  The enquiries and consultation about his children’s wellbeing are the services that the Applicant sought and did not receive.

 

[7]        In his submissions counsel for the Society stated that the Applicant was considered only as a referent like anyone else, “like John Smith down the street”, the same way as any neighbour who calls to report concerns.  He added in those cases, the referent would not be provided with any information about the investigation. He added that, at this Society, a father is never entitled to receive information, unless he has a custody court order. 

 

[8]        The Board asked counsel for the Society how section 20(5) of the Childrens Law Reform Act, R.S.O. 1990, c. C.12, or the equivalent section 16(5) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), would impact this position. The relevant sections are as follows:

20(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. 

 

16(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

 

He argued that it was for the mother of the children to provide the information to the father, not the Society.  Finally, counsel stated with great emphasis that this practice is in place to protect the privacy rights of the mother.

 

[9]        The Board does not accept this interpretation.  A number of court cases have interpreted the rights of an “access” parent as including the right to make independent inquiries and to receive information that relates to the wellbeing of their children directly from service providers without needing to obtain the information from the custodial parent or the need to obtain their consent first.  See for example Daniel-DeFreitas v. Francis, 2012 ONSC 515 (CanLII) at para. 39:

[…] Furthermore, section 20(5) of the CLRA establishes that the right to access includes the right to make inquiries and to be given information as to the health, education and welfare of the child. 

This provision places a responsibility on the Applicant to provide the Respondent with information about the child upon request, and entitles the Respondent to obtain information and documentation from professionals involved with the child. 

 

 

[10]      The Society is such a service provider and must share information about non-custodial parent’s children with them when asked.  This is a service which affects the parent’s interests.

 

 

[11]      The Board finds that it has jurisdiction to proceed with all the issues in the application.

 

  1. ) The following matters may be reviewed by the Board under this section:  

[…]     

  1. ’s interests.

 

2(2) Service providers shall ensure,

(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving;

 

[12]      The Board has jurisdiction to hear an application under these sections when a person is seeking or receiving a service from a society. The Applicant sought a child welfare service, namely to be consulted and informed about the wellbeing of his children in the context of a number of child protection investigations of the care provided by the children’s mother.

 

[13]      The Applicant’s interests were affected because the Society’s decisions made during these investigations impacted his relationship with his children as well as their safety and wellbeing.  He is entitled to be informed about these matters. In H.P. v. Brant Family and Childrens Services, 2014 CFSRB 71 (CanLII) at paras 17-19  the Board similarly found that a non-custodial parent is entitled to receive information from the Society directly:

Even though the Applicant is not the custodial parent, he is involved with his children, and his expressions of concern about his children’s whereabouts and welfare after their mother’s arrest were not addressed by the Society.

 

During this stage of the Society’s investigation, the Board finds that frequently the Applicant was not given an explanation or reasons on a variety of issues as they arose. At the hearing, the Society tendered evidence that they chose not to provide information to the Applicant because: (1) this disclosure would have violated the Mother’s right to privacy and came from her file; and, (2) the Mother had sole custody, while the Applicant was an access parent. However, section 20(5) of the Children’s Law Reform Act, states that:

 

The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

  

The underlying tone of many of the case notes, and the evidence provided at the hearing confirmed that the Society made a decision to provide little or no information in response to the concerns he raised about the Mother’s ability to care for the children.

 

On the facts set out with respect to this part of the complaint, the Board finds that the Applicant was not heard, when he conveyed his concerns and asked questions about the welfare of his children, and that the Society did not give him reasons for its actions and why it withheld this information from him.   

 

[14]      The Board will proceed to a hearing and will offer the parties its settlement facilitation process.  The parties will be contacted to schedule the pre-hearing settlement facilitation conference.

 

CONFIDENTIALITY ORDER

 

[15]      Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings, except with an order of the Court or the Board, as appropriate.


Source:
www.canlii.org//2016/

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