CHILD AND FAMILY SERVICES REVIEW BOARD
R.K.
v.
Huron-Perth Children’s Aid Society
REASONS FOR DECISION ON JURISDICTION & MERITS
Indexed as: R.K. v. Huron-Perth CAS (CFSA s.68)
INTRODUCTION
1The Applicant, R.K., brought an application for review pursuant to section 68(5) of the Child and Family Services Act (the “Act”).
2Although R.K. signed the application to the Board dated February 14, 2008, it was clearly also made on behalf of T.H.P. T.H.P. was present for the hearing and the Society consented to an amendment to add T.H.P. as an applicant. Accordingly, it is ordered that the application be amended and R.K. and T.H.P. will hereinafter be referred to as the “Applicants”.
3The Applicants filed a complaint with the Huron-Perth Children’s Aid Society (the “Society”) on January […], 2007. The Society determined on January […], 2007 that the application was ineligible for review by its Internal Complaint Review Panel (the “ICRP”) because the subject matter of the complaints were issues that were either before the Court or had already been decided by the Court, as set out in subparagraph (a) of subsection 68(12) of the Act, which reads as follows:
68(12) A society shall not conduct a review of a complaint under this section if the subject of the complaint, (a) is an issue that has been decided by the court or is before the court.
4The Applicants signed this application to the Child and Family Services Review Board (the “Board”) on February 14, 2008 and the application was received by the Board on the 21st day of February, 2008. It was the evidence of the Applicants that they had lost all of their paperwork in a residential move a year earlier and, hence, the considerable delay. The Society did not take issue with this delay. The Society brought a motion challenging the jurisdiction of the Board to review the Applicant’s complaint. The Society claims that the subject matter of the complaints (with one exception related to case worker change noted below) are matters which are currently before the Court or have been decided by the Court and as such cannot be reviewed by the Board. The Applicants take the position that the subject matter of these complaints have not been before the Court and that the Board has jurisdiction to proceed on the merits.
5The Applicants’ letter of complaint to the Board, dated February 14, 2008, is similar to the letter of complaint sent to the Society dated January […], 2007 (except that the Applicants also allege that the Society has inaccurately recorded something in the file or record and that there has been too many case workers assigned to the file). As such, this hearing proceeded by way of a review pursuant to section 68(5). The Board on this motion must determine whether the Society was correct when it decided that the Applicants’ complaints were before the Court or were decided by the Court, and therefore were ineligible for review by the ICRP.
6In the application to the Board, the Applicants raised a new complaint in respect of the number of case workers assigned to their file and the Society conceded that this complaint could proceed to a hearing on the merits pursuant to subparagraphs (4) and (5) of section 68.1(4).
BACKGROUND
7The Applicants are the biological parents of L.K. born February […], 2004. T.H.P., one of the Applicants, has two other children, T.H. born June […], 1998 and C.P. born December […], 1999. These three children were apprehended by the Society on March […], 2006.
8J.M., a Family Service Worker with the Society, was assigned to work with the Applicant’s family in 2004, and met regularly with the family, prior to the children being apprehended.
9The child L.K. has been in the Society’s care since apprehension and was made a Crown Ward, by Order of Justice R., dated February 8, 2008. The Applicants have filed a Notice of Appeal of Justice R.’s decision and the appeal has not yet been heard.
10On January […], 2007 the Applicants filed a written complaint with the Society. The Society responded by letter dated January […], 2007 advising the Applicants that their complaint was ineligible for review by the Society because the subject matter of their complaints were issues that were either decided by the Court or before the Court. The child, L.K., has remained in Society care since March […], 2006 and a trial took place on March […],[…] and […], 2007. Justice R. reserved his decision which was not given until almost one year later on February […], 2008.
11The Applicants confirmed their concerns as listed at the pre-hearing on March 28, 2008 and identified as:
(i) the Society has inaccurate information about the Applicants recorded in a Form 8B (a Court form) which has been filed with the Court;
(ii) there have been too many workers assigned to their file;
(iii) the apprehension of the child(ren) was premature and J.M., the Family Services Worker, acted improperly when interacting with their family;
(iv) the services provided by the Society were not sufficient to assist them with their parenting;
(v) the Society breached the Court Order by unilaterally changing their access from unsupervised to supervised; and
(vi) Dr. S. was biased against them in conducting her parenting capacity assessment.
12It was determined at the pre-hearing that the Board would first hear and rule on the Society’s jurisdiction motion and would then hear the merits of the application if it had jurisdiction to proceed.
ANALYSIS
A. JURISDICTION.
(i) The Society has inaccurate information about the Applicants recorded in a Form 8B, which has been filed with the Court
13The Applicants allege that the Society incorrectly identified the children’s babysitters and incorrectly recorded the observation of a police officer in a Form 8B which has been filed with the Court.
14The Board’s authority to deal with such complaint is pursuant to subparagraph 1 of subsection 68(5) of the Act. Under this section, the Board cannot review a complaint that the Society has inaccurately recorded something in its files until the Society has reviewed the complaint through its internal complaint review procedure.
15The Applicants did not raise this issue in their letter of complaint to the Society dated January […], 2007 and therefore this complaint was not addressed by the Society in the January […], 2007 response to the Applicants. The Applicants will have to first raise this complaint in writing to the Society and only upon completion of the internal complaint review procedure can this complaint be brought to the Board. The Board notes that even had this concern been raised by the Applicants in their letter to the Society dated January […], 2007, the Society may very well have responded that the complaint was ineligible as a matter involving a Court form is before the Court. Furthermore, even if this complaint is within the jurisdiction of the Board, the usual remedy is that an Order that a Notice of Disagreement is added to the complainant’s file as contemplated in subparagraph (a) of subsection 68(10). Since the inaccuracies complained of are in respect of the Court file, and not the Society file, there may not be any remedy available to the Applicants.
16The Board, at this time, does not have jurisdiction to review this complaint and as such this complaint is dismissed.
(ii) There have been too many workers assigned to their file.
17The Society noted that this complaint was not set out in the Applicants’ letter of complaint to the Society dated January […], 2007 and the appropriate box for such a complaint was not marked by the Applicants in paragraph three of the application to this Board. The Society first became aware of this complaint upon receipt of the application in late February, 2008 and it was discussed at the pre-hearing conference. The Society, in an effort to deal with all of the issues in a timely fashion in this forum, consented to this complaint proceeding directly to the Board notwithstanding the possible irregularity in the completion of the application form.
18The Society conceded that this complaint has not been decided by the Court and that it would be appropriate for the Board to review this complaint. The Board determined that it would hear the merits of this complaint pursuant to subparagraphs 4 and 5 of subsection 68.1(4) of the Act and the outcome is addressed later in this decision.
(iii) The apprehension of the child(ren) was premature and the Society’s worker, J.M., acted improperly when interacting with their family
19The Society argues that the issue of the timeliness of the apprehension of the children is a matter that was before the Court on April […], 2006. On that date, a temporary order placing the children in the care of the Society was made. Further, the facts that the Society relied upon to apprehend the children were agreed to by the Applicants when they signed a Statement of Agreed Facts on March […], 2007. This document is at Tab 7 of the Society’s Motion Record. The Society’s position is that the apprehension and J.M.’s actions on that date are all issues that have been before the Court and are still before the Court on Appeal.
20The Applicants agree that the apprehension of their children was (and is) before the Court. Their primary complaint is about J.M.’s attitude toward their family during the period before their children were apprehended. The Applicants believe that J.M. was rude – for example, coming into their house without knocking and they felt “pushed around” by her. The Applicants advised that they had previously complained about J.M.’s actions in writing early in 2005. This was confirmed in a letter from the Society dated April 13, 2005 (Exhibit A1) to the Applicants which refers to a Notice of Dissatisfaction with Service to the Society from the Applicants dated April 7, 2005.
21The Board cannot review a complaint if it was made in writing to the Society prior to November […], 2006 and the Society responded to the complaint. Under section 68(13) of the Act, any written complaint to the Society made prior to November […], 2006 can only be reviewed under the complaint review process that was in effect at the time of the complaint. The complaint process that was available when the Applicants made their written complaint about J.M. in 2005 did not involve a review by this Board. As such, the Board finds that it does not have jurisdiction to review this complaint because of the transition provision.
(iv) The services provided by the Society were not sufficient to assist them with their parenting
22The Applicants take the position that if the Society had provided more services to them they would have been able to demonstrate to the Court that they could parent their children.
23The Society argued that the issue of services was dealt with at trial as evidenced by the decision of Justice R. which can be found at Tab 9, pages 3 and 4, of the Society’s Motion Record. At Tab 9, page 4, paragraph 19, Justice R. notes that Dr. S., an expert in parenting capacity, “stated quite emphatically that this family has already had a good level of intervention with no appreciable effect”.
24The Board finds that the issue of the services provided by the Society to the Applicants to assist them with their parenting skills and the adequacy of these services was before the Court and dealt with at trial. Consequently, the Society was correct to deem that this complaint made by the Applicants in their letter dated January […], 2007 was ineligible for review because the subject matter of the complaint was before the Court. This complaint is therefore dismissed.
(v) The Society breached the Court Order by unilaterally changing their access from unsupervised to supervised
25The Applicants in their letter dated January […], 2007 to the Society complained that the Society had changed their access before going to Court to get the Order of April […], 2006 varied. This Order permitted the Applicants to have unsupervised access to their children. After receiving the report of Dr. S. dated December […], 2006, the Society imposed a condition that the visits be supervised and only obtained an order to do so on January […], 2007. The Society argues that this issue was dealt with by Justice R. on February […], 2007 when the Court heard a motion to vary a temporary order of the Court with respect to the Applicants’ access.
26Justice R.’s endorsement found at Tab 5 of the Motion Record deals with this issue. Although the Court was not pleased with the Society’s actions, the Court “out of an abundance of caution” granted the Society’s request that the access be supervised. As such, the Board finds that the issue of the Society not complying with the Court Order of April […], 2006 with respect to access was dealt with by the Court. Therefore, the Board finds that the Society was correct in stating in its letter dated January […], 2007 that the subject matter of this complaint was before the Court and as such ineligible for review by the Society. The Board therefore dismisses this complaint.
(vi) Dr. S. was biased in her assessment against them
27The Society argues that the Board does not have jurisdiction to review this complaint because Dr. S. is not an employee of the Society. The Society also argues that the Board does not have the jurisdiction to review the actions of Dr. S., a psychologist, in a professional capacity. Further, Dr. S. was available to be cross-examined about any alleged bias at trial.
28The Board, upon review of Justice R.’s decision, made February […], 2008, found that the issue of Dr. S.’s alleged bias against the Applicants was addressed by the Court (see paragraph 21 of Justice R.’s decision dated February […], 2008) at Tab 9 of the Motion Record. In particular, Justice R. stated the following:
Counsel for the Respondent Mother in Cross-examination attempted to establish that Dr. S. was biased, and perceived every aspect of the Respondent Mother and Father in a negative fashion. However, this Court finds that many of the observations made by Dr. S. were made by other witnesses and, while her report does contain many negative references to the Respondent Mother and Father, the Court concludes it is accurate and well documented.
29Therefore, the Board finds that the Society was correct when it responded to the Applicants’ complaint letter dated January […], 2007 that the complaint was ineligible for review by the Society because it was before the Court. As such, this complaint is dismissed.
B. HEARING ON MERITS
(i) Complaint (ii) There have been too many workers assigned to their file
30The Board proceeded to hear the merits of this complaint pursuant to subparagraphs 4 and 5 of subsection 68.1(4) of the Act.
31The Applicants complain that they have had nine case workers since the Society became involved with their family (Exhibit A2). T.H.P. testified that she had raised this complaint to both S.M. and N.P., but had not raised this issue with their supervisor. She further attested that only S.M. gave her a reason for her departure and for a change in worker. The problem of case worker change was, on the evidence, only significant for the period March […], 2007 to April […], 2008 and, in particular, from the time P.C. left the file to when the current case worker, S.A., took over. After P.C., there were four case workers in a short period of time, including the current case worker, S.A.. The Applicants believe that the outcome may have been different for them had there not been so many case workers, and they believe that because there were frequent transitions between case workers that the case workers did not have the opportunity to get to know the family and may have missed the “big picture”. It was noted from the evidence of the Applicants that frequent worker change only became an issue when P.C. left and, at that time, the trial had been completed and the decision was under reserve. The Applicants had no complaints about the current case worker, S.A.
32L.P., Program Manager with the Society, who began supervising this file in March 2008, gave evidence on the change of workers. From her evidence, the Board was able to confirm that since the end of the trial, four workers have been assigned to the Applicants’ file. The witness addressed general considerations of case worker turnover due to various leaves and transfer opportunities and also spoke specifically with respect to this file. With respect to P.C. (July […], 2006 to March […], 2007), he left a contract position at this Society to take up employment at another Society. With respect to the case worker, S.M. (March […], 2007 to June […], 2007), she transferred to the C.S. Department from the F.S. Department. With respect to N.P. (June […], 2007 to November […], 2007), she was at this Society on a contract filling a leave position and left for a permanent position elsewhere. With respect to D.L. (November […], 2007 – December […], 2007), she was a contract employee. This witness further gave evidence that there was often not much that can be done about changes in case workers and that unfortunately it often goes with the nature of the organization. The Board notes that after March […], 2007, it was the expectation of all parties that a decision would be available from the trial judge within a matter of weeks and the fact that it took almost a full year for a decision to be made (during which time the Applicants had five case workers), was unexpected and quite exceptional. The Society anticipated that the services required by the Applicants would be dictated by the type of order made by the trial judge and, accordingly, longer term planning for this family was not practical after trial and before judgment.
33The Society acknowledges, and the Board agrees, that the number of caseworkers assigned to this file was not optimal and not in the best interests of this family. The evidence shows that the Applicants were informed when new workers were assigned to their file, although under circumstances which were less than ideal for both the Society and the Applicants. There were reasons for case worker changes and this was not indicative in this case of the Applicants not being heard. The Society did provide, at this hearing, some additional information (noted above) as to why there was a change in workers, to the extent that the Society was allowed to do. Having considered all of the evidence, the Board is unable to conclude that the Applicants were not heard or provided with reasons in respect of changes in case workers and, accordingly, the Board dismisses the Applicants’ complaint.
Gregory Price Presiding Member
Donald Butler Panel Member
Denyse Diaz Panel Member
Dated at Toronto, Ontario this 7th day of May, 2008.