CHILD AND FAMILY SERVICES REVIEW BOARD

M.L. and N.L. v. York Region Children’s Aid Society

REASONS FOR DECISION ON JURISDICTION AND MERITS

Date: March 6, 2008

Citation: 2008 CFSRB 16

Indexed as: M.L. and N.L. v. York Region CAS (CFSA s.68)

INTRODUCTION

1M.L. and N.L. (the “Applicants”) filed an application with the Child and Family Services Review Board (the “Board”) under section 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”) complaining about the York Region Children’s Aid Society (the “Society”).

2The Society argued in a preliminary motion that the Board did not have jurisdiction to hear the Applicants’ complaints because the issues are clinical in nature and beyond the mandate of the Board. As well, the Society argued that some of the complaints are issues that have been decided by the Court. The Applicants complain that: (a) their children were not receiving proper care under the care of the Society; (b) their complaints have not been responded to by the Society; and (c) the Society does not respect their family.

3The issue before the Board is whether it has the jurisdiction to hear the complaints and if it does, to determine the merits of the complaints.

BACKGROUND

4M.L. and N.L. are the parents of two children, R.L. (D.O.B. April […], 1996) and D.L. (D.O.B. October […], 1997). On October […], 2006, staff at the school called the Society and reported that D.L. had what appeared to be a hand print on the right side of his face and scratches near his eye. D.L. disclosed that his mother had hit him on his face and leg because he had brought a note home from school the previous day regarding a behavioural issue. Society intake screener, R.G., contacted the York Regional Police Child Abuse Unit. Detective K.M. and M.L.H., Intake Worker, went to the school and conducted an investigation. Detective K.M. charged N.L. with assault. However, N.L. claimed that D.L.’s injuries were the result of an accident. Initially, the Society was willing to let D.L. go home with the father if an appropriate safety plan could be developed. M.L. believed that his wife had not touched D.L. and he was unwilling to take D.L., who he says has an active imagination, for fear that D.L. would make allegations against him. The Society apprehended both children because of the disclosures of physical discipline used against both of them, and the father’s response to D.L.’s injury. R.L. was placed back with the parents in December of 2006 under the temporary supervision of the Society and D.L. was returned in October of 2007 under the temporary supervision of the Society.

5The Applicants identified the following issues:

1. They have been humiliated through the whole fiasco and have had to endure moral pressure;

2. The Society was unable to do anything positive for their son D.L.;

3. The Society was unprofessional in carrying out its duties;

4. The Society had not responded to their letters;

5. D.L. was not cared for effectively by the Society;

6. The Society should be supervised;

7. The Society does not respect their family;

8. The Society has not apologized for apprehending their daughter, R.L., without cause;

9. The Society disregarded information from the parents and a medical opinion about D.L.;

10. Nothing happens without the Board’s intervention and so it needs to be involved for the Society to act;

11. Nothing the Society has done has helped the child;

12. There are no proposals from the Society to resolve the issues.

ANALYSIS

PART 1: Whether the Board has the jurisdiction to hear the Applicants’ complaints under the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html).

6The Society argued that the Board is only mandated to deal with the processing of complaints. Section 68.1 enumerates the matters eligible for review by the Board and the remedies are set out in subsection 68.1(7). It is the Society’s submission that the legislation does not give the Board the authority to determine if a child is in need of protection or if the Society has failed to protect a child. The Board cannot direct the Society to take protection action or stop the Society from doing so, or comment on clinical decisions by the Society.

7While the Board agrees that it has no authority to determine if a child is in need of protection, it disagrees that it is only mandated to deal with the processing of complaints. Under subsection 68.1(4)(4), the Board can hear allegations that the Society has failed to listen to parents about their concerns regarding the services received by a society pursuant to clause 2(2)(a) and under subsection 68.1(4)(5), regarding allegations that the Society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests. Under subsection 68.1(1)(a), an applicant does not need to make a complaint to the Society first before bringing it before the Board, if the complaint in respect of a service sought or received from a Society relates to a matter described in subsection 68.1(4).

8The jurisdictional issues on the complaints were determined as follows:

1. They have been humiliated through the whole fiasco and have had to endure moral pressure.

9The Society argued that the first issue must be presented to the Society as a complaint before the Board can respond to it. The Board finds that the Applicants can bring a complaint directly to the Board under subsection 68.1(4) and that it has jurisdiction to hear this issue. At the heart of this complaint is the Applicants’ belief that they have not been listened to regarding their concerns about the services provided to them by the Society pursuant to subsection 68.1(4)4.

2. The Society was unable to do anything positive for their son D.L.

10The Society argued that this was a clinical issue beyond the scope of the Board. The Board finds that it has no jurisdiction to hear this issue because it is not an enumerated complaint under subsection 68.1(4). The Board has no jurisdiction to evaluate the effectiveness of the Society’s intervention.

3. The Society was unprofessional in carrying out its duties.

11The Society argued that issue number 3 has not been specifically set out in the Applicants’ letters and if he can point out the issues then it would be properly before the Board. The Board finds that the Board can hear this complaint as it relates to the Society’s failure to listen to the Applicants’ concerns pursuant to clause 2(2)(a).

4. The Society had not responded to their letters.

12The Society disagrees with the allegation that it did not respond to their letters. The Board finds that it has jurisdiction to hear this issue under subsection 68.1(4)1, that the Society failed to proceed with the Applicants’ complaint.

5. D.L. was not cared for effectively by the Society.

13The Society argued that this was a clinical issue beyond the scope of the Board. The Applicants took the position that this complaint did not deal with clinical decisions of the Society, but more with the lack of respect for the family’s concerns regarding the child and the health of the child. The Board finds that it has jurisdiction to hear this issue under subsection 68.1(4)(4) because pursuant to clause 2(2)(a) of the Act, the Applicants have the right to be heard regarding the care of their son.

6. The Society should be supervised.

14The Society argued that the Board does not have the mandate to hear this issue. The Board agreed that it does not have a broad mandate to supervise the Society. The only supervision that can be provided by the Board relates to the specific grounds of complaint enumerated under section 68.1(4).

7. The Society does not respect their family.

15The Society argued that this issue is not within the mandate of the Board. The Board ruled that it has jurisdiction under subsection 68.1(4)(4). The Applicants have the right to be heard with regards to how they are treated by the Society.

8. The Society has not apologized for apprehending their daughter, R.L., without cause.

16The Society argued that the issue of R.L.’s apprehension was an issue that was decided by the Court and the Board has no jurisdiction to hear it. The Board agreed that the issue of the apprehension has been decided by the Court. Pursuant to subsection 68.1(8)(a) of the Act, the Board cannot review a complaint if the subject matter of the complaint has been decided by a Court. As such, the Board does not have jurisdiction to review this complaint.

9. The Society disregarded information from parents and medical opinion about D.L.

17The Society argued that the use of this information is a clinical issue, and as such, the Board has no right to review this complaint. The Board finds that it has jurisdiction under subsection 68.1(4)(4) because this complaint relates to the Applicants’ right to be heard by the Society regarding the information in their possession.

10. Nothing happens without the Board so it needs to be involved for the Society to act.

18The Society argued that this issue is not within the mandate of the Board. The Board agreed that this is not an issue within the mandate of the Board and dismisses the complaint.

11. Nothing the Society has done has helped the child.

19The Society argued that this was another clinical issue, which is not properly before the Board. The Board finds this is not an issue within the mandate of the Board since it evaluates the work of the Society.

12. There are no proposals from the Society to resolve the issues.

20The Society argued that if this refers to a Court process, then this issue is before the Court. The Applicants argued that they expected the Society to: (a) acknowledge its mistakes and conduct an internal investigation into its actions; (b) release D.L. and R.L. from the Society’s care; (c) fully cooperate with them and provide assistance to D.L. to deal with the effects of his apprehension; and (d) fully reimburse them for any costs which they have to incur in order to do so.

21The Board finds that proposal (a) and (b) as suggested by the Applicants are matters that have been decided by the Court. Therefore, pursuant to subsection 68.1(8), the Board does not have jurisdiction to review this complaint. Further, the Board does not have the jurisdiction under subsection 68.1(7) to either order the Society to cooperate with the Applicants or to make a costs order. As such, the Board cannot review this complaint.

DECISION ON THE MOTION

22The Board finds that it has jurisdiction to hear issues 1, 3, 5, 7, and 9 of the Applicants’ complaints as it relates to clause 2(2)(a) which reads:

2(2)(a) Service providers shall ensure 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.

23The Board ruled that item number 7 is similar to item 1 and the two are combined as one issue.

24The Board finds that it has jurisdiction to hear issue 4 of the Applicants’ complaints as it relates to subsection 68.1(4)1.

25The Board dismisses issues 2, 6, 8, 10, 11 and 12.

PART 2: Complaint on the Merits

a. They were humiliated and the Society did not respect their family

26M.L. testified that the Society showed disrespect to his family by their constant unwillingness to use an interpreter when communicating with him and his wife. His children were prohibited from speaking in [their mother tongue] with them on the phone when they were in the foster home. He feels it is a violation of their Charter rights when they are denied an interpreter. The Society communicated with them mostly by phone during the day when they were at work in noisy environments. N.L. is a driving instructor and M.L. operates an auto shop. The Society also had the habit of communicating with them in the lobbies and halls and gave them papers right before Court, not giving them time to read the documentation. In cross examination, M.L. indicated that an interpreter was provided at Court almost all the time. He did not tell Society workers over the phone that he did not want to communicate without an interpreter, but he said so in Court and in written correspondence.

27The Society argued that the Applicants had no difficulty understanding the conversations with Society workers. In a sworn affidavit, M.L.H. stated that during the investigation at the school, both Applicants appeared to understand what she was saying and what was happening to the children. They did not ask for the services of an interpreter. In a sworn affidavit, S.G., Family Services Supervisor, stated that she spoke with M.L. in a telephone conversation and he appeared to understand her and she could clearly understand him. M.W., in a sworn affidavit, stated that during her conversations with the Applicants, she had never experienced any difficulty in understanding them. However, in a sworn affidavit, L.D., Intake Supervisor, stated that N.L. indicated to her in a telephone conversation on December […], 2006 that English could be difficult to understand on the phone.

28The Board finds that the Society did not allow the Applicants the opportunity to be heard when they did not provide them with an interpreter in many instances when communicating with them and responding to their letters of complaint. The Court had determined their need for an interpreter and had ordered one for the Court proceedings. In the Consent Endorsement dated May […], 2007, when D.L. was released under Society supervision, the Court ordered an interpreter for meetings and telephone conversations with Society workers. During the three days of the hearing with the Board, the Applicants made extensive use of the Board appointed interpreter and clearly demonstrated, at times, a misunderstanding of the interpretation of English and a need for the service. In their correspondence with the Society and the Board, the preponderance of spelling and grammatical errors should have indicated to the Society that the Applicants do not have a good command of the English language.

29The Board also noted the behaviour of the Society worker in attendance at the Board hearing. Even in her oral testimony, the tone of voice in which she responded to questions showed disrespect towards the Applicants. She chewed gum, talked and giggled during the Applicants’ testimony, and demonstrated a lack of respect for the Applicants at the hearing.

b. Society was unprofessional in carrying out its duties

30M.L. alleges that after the apprehension of his son, D.L., the Society did not do an investigation to determine the condition of the child and his health. They did not interview neighbours, get information from the family doctor, or the community centre that the Applicants’ family was involved with, or contact other sources with medical knowledge of his son. Four days later in Court, they were told to retain a good lawyer. No arrangements were made for access or visitations. They did not get an access visit until two months after the apprehension, which is longer than normal. They faced a lack of communication and were not informed of the process. During the first month, they only had two short phone conversations with M.L.H. M.L.H. sent a letter on November […], 2006 indicating that their case was being transferred to a Family Service Worker who would work out a plan for service to address the Society’s concerns. However, M.L. states that nothing was done over time. The letter was not supported by action.

31The Applicants complain that D.L. did not receive psychiatric services for three months after his apprehension and only received a one-day assessment by O.H. on January […], 2007. Dr. O.H. stated that there should be academic and cognitive testing, however, in D.L.’s current state of mind he might be unable to adequately focus or cooperate with such an assessment. She recommended some stabilization in his adjustment and functioning before he proceeded with cognitive and academic testing. However, contrary to Dr. O.H.’s recommendations, the Special Education Resource Teacher at the public school conducted academic testing in February and March.

32The Applicants provided M.L.H. with all of the children’s after school activities at the first Court hearing in the presence of the lawyer and the interpreter. He met the Society afterwards and told them of all the after school activities. His daughter was second in Ontario in karate and he did not want to stop it. M.L.H. put everything down and promised to consider everything. After a year, no after school activities were offered.

33The Society acknowledges that there were gaps in service. The Family Services Worker initially assigned to the Applicants’ file was J.S. However, shortly afterwards she went on a leave of absence. The time it took for a Family Services Worker to actively assume carriage of the Applicants’ case was long. The length of time for physical access to take place was long.

34The Board finds that the Society failed to listen to the Applicants during the provision of its services contrary to clause 2(2)(a). The Society through its counsel in the summary reply extended an apology to the Applicants and is sorry for the impact on the family. The Applicants want an apology in writing. Even though the Board cannot order an apology, it strongly recommends that the apology should be official and in writing.

c. The Society had not responded to their letters

35The Applicants testified that the majority of letters to the Society were not responded to. They addressed a number of letters to M.M., the Executive Director at the time. On December […], 2006, they wrote about their concerns over the physical and emotional health of the children, the fact that they have not been able to see the children, only speaking by phone to the kids who are crying all the time, and not being able to speak to them in their home language. On March […] and March […], 2007, letters were written to M.W. and also to the attention of M.M. regarding the disorganization of home visits and the lack of home visits for three weeks due to driver absence and poor weather. In an undated letter to M.M., the Applicants complain that all the letters sent to him and Society staff are still without any official response. They feel that if they do not admit to mistreating their children, then they are not co-operating with the Society. Their kids have been kept from them for two months. Reasons are made up not to allow them to speak on the phone. M.L.H. agreed to talk to them but when they wanted their lawyer present, she never came back to it. They have concerns about their son’s health and mental state and ask for a reply letter or in person. In addition to the above letters, the Applicants wrote letters of complaint to M.W. dated, December […], 2006, and March […], 2007. The Society responded to most of the letters by phone despite the request of the Applicants to reply in writing due to their difficulty in understanding English. L.D., Family Services Supervisor, responded to the March […], 2007 letter of complaint, in writing (letter dated April […], 2007) and also arranged a meeting on May […] with the Applicants, M.W. and herself to discuss the complaints. An interpreter was provided for this meeting at the request of the Applicants and L.D. felt that the Applicants’ concerns had been addressed.

36B.M., formerly the Director of Client Services, worked directly under M.M., the Executive Director. She states in a sworn affidavit that M.M. would direct client letters to her to review and determine a course of action. She has no specific recollection of the letters from M.L. and N.L. Following the creation of the Board, the procedure was that complaints would be reviewed and a determination of eligibility for an Internal Review Panel would be made. She claims that in reviewing the complaints made by the Applicants, they would not have been deemed eligible for such a panel. She also claims that M.M. would not have played a role in addressing such complaints before or after the inception of the Board. When asked what would determine if complaints are eligible for a review by an ICRP (Internal Complaints Review Panel), B.M. stated that if a case is before the Court, then they do not convene an ICRP.

37The Board finds that the Society contravened subsection 68.1(4)1 when it failed to proceed with the letters of complaint of M.L. and N.L. and form an ICRP panel as required under legislation. Even if the child protection case was proceeding in Court, the Applicants’ complaints that the Society failed to listen to them about their concerns regarding the services they were receiving and when decisions were made affecting their interests, were not before the Court.

d. D.L. was not cared for effectively by the Society

38The Applicants introduced evidence to show that D.L.’s health and academic performance deteriorated while under the care of the Society. They brought pictures that showed D.L. before and after the apprehension. D.L. sustained an injury, a bruise on the temple, while at the group home in an incident involving another child. This injury was documented in an injury report on April […], 2007. The Applicants also introduced provincial report cards from the Toronto District School Board in June 2006 and from the Durham District School Board in June 2007, which show a deterioration in grades under the care of the Society. In the letter of August […], 2007 to M.W., the Applicants noted that D.L. had a skin disease, a high cholesterol level and had gained excess weight due to his diet while in the care of the Society. In addition, the child had been deprived of any after school activity for a year, even though the Society was made aware of his activities at a community centre. The child was sent to a village-like environment, far away from his home, blocking interaction with his parents.

39The Applicants also complained that the Society did not get orthotic shoes for D.L. On March […], 2007, Dr. G. wrote a prescription for D.L. to get orthotic shoes and the Applicants made this known to the Society during a Court hearing in March. However, D.L. did not get orthotic soles until October of 2007 due to Society worker’s difficulty in getting the prescription and information from the doctor.

40M.A., the Children’s Services Worker with the Society at the time, in a sworn affidavit addressed the issues of D.L.’s behavioural issues at school and the interventions taken by the school and the Society in order to stabilize D.L.’s behaviour and improve his academic progress at school. While D.L. had participated in many extra-curricular activities at home, the priority for the Society was to stabilize him and have him assessed for a treatment plan. He was encouraged to participate in sports at the group home, but D.L. refused. Until D.L.’s aggressive behaviours subsided, it was determined that D.L. should not enroll in Karate classes. The Society also addressed the Applicants’ concerns about their child’s health by getting a referral for D.L. regarding his orthopaedics, a referral to be seen by a Dermatologist for his skin condition, and an appointment for a physical.

41The Board finds that the Society listened to the Applicants’ concerns about their child’s health and academic progress and made the arrangements to address his needs, though the response at times was slow.

e. The Society disregarded information from parents and medical opinion about D.L.

42The Society ignored the assessment of Dr. Y. and Dr. S. which recommended that the Society facilitate the transition of D.L.’s return to his home. Dr. Y. completed an assessment report dated February […], 2007 on the members of the Applicants’ family, which the Society did not accept. Dr. Y. accepted the mother’s version of the incident, which resulted in the mark and the scratches on D.L.’s face. The Society claims that the assessment did not mention the relationship between the Applicants or how they discipline their children. The Society also discovered that Dr. Y.’s license was suspended for five months on March […], 2007 by the discipline committee of the College of Physicians.

43The Board finds that the Society considered the information provided by the Applicants and disregarded it. The Board finds that the Society has the right to evaluate the assessments completed by medical professionals and vet the credentials of these professionals. The Board dismisses this complaint.

CONCLUSION

a. The Board finds that the Society did not allow the Applicants the opportunity to be heard when they did not provide an interpreter in their conversations with them.

b. Even though the Board cannot order it, the Board strongly recommends that the Society provide the Applicants with a written apology for the gaps in service and the length of time it took for a worker to assume their file.

c. The Board finds that the Society did not respond to the written complaints of the Applicants as required under subsection 68(2).

d. The Board dismisses this complaint.

e. The Board dismisses this complaint.

DECISION

(i) The Board denies the motion of the Society regarding jurisdiction and determines it has jurisdiction to hear issues 1, 3, 4, 5, 7 and 9. The Board dismisses issues 2, 6, 8, 10, 11 and 12.

(ii) The Board orders the Society to conduct an internal complaints review procedure regarding the Applicants’ written complaints to the Society in accordance with the timelines set out in the Regulation 494/06. The timelines shall commence from the date of this decision. The Society shall send a copy of the written summary from the internal complaints review procedure to the Board no later than April 21, 2008.

Ruth Ann Schedlich Presiding Member

Denyse Diaz Board Member

Mary Wong Board Member