CHILD AND FAMILY SERVICES REVIEW BOARD
K.R.
v.
Dilico Child and Family Services
REASONS FOR DECISION ON JURISDICTION & MERITS
Indexed as: K.R. v. Dilico Child and Family Services (CFSA s.68)
Related Decision: Reasons For Decision On Implementation Under S.34 Of The Child & Family Services Review Board Rules Of Procedure - K.R. V. Dilico Child And Family Services (CFSA S.68), 2009 CFSRB 21
INTRODUCTION
1On March 19, 2009, the Child and Family Services Review Board (the “Board”) heard an application by K.R. (the “Applicant”) regarding complaints against Dilico Child and Family Services (the “Society”) pursuant to section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”).
2At the hearing, the Applicant’s complaints were listed and confirmed to be as follows:
The allegation by the Applicant that the Society refused to proceed with the written complaints made by the Applicant to the Executive Director and to the Society.
The Applicant’s concern that his complaints about constant and continual harassment of the Applicant and his son by the Society have not been heard.
The Applicant’s concern related to the “Christmas” apprehension of his son with respect to the lack of contact between the Applicant and the child during this period and with respect to the lack of appropriate care (nutrition) for the child during this period.
3The Board concluded that it did not have jurisdiction to hear complaints 1 and 2 for the reasons given in this decision. With respect to complaint 3, the Board determined there was jurisdiction and proceeded with a hearing on the merits and reserved a decision on completion which follows.
BACKGROUND
4The Applicant is the father of N. who is 12 years old and who has been in his care since he was an infant. N. has been diagnosed with fetal alcohol syndrome. The Society has been involved with the Applicant and his son since at least August 2007. N. had been residing with a friend of the Applicant’s, D.L, since December […], 2008 on an interim basis until the Applicant and his son moved into other accommodations. On December […], 2008, the Society received a call from D.L informing them that he was no longer willing to care for the child. The child was apprehended on the same day and admitted to a local hospital for a mental health assessment. He was discharged to the Applicant father on December […], 2008 as the result of a motion to the Court brought by the Applicant to have the child returned to him.
JURISDICTION
5The Society submitted a summary reply to the Board on January […], 2009 and took the position that the matters submitted by the Applicant to this Board are before the Court and therefore beyond the jurisdiction of the Board. Further, on March […], 2009, the Society requested a copy of the letter that the Applicant had allegedly written to the Executive Director. The Board first addressed the issue of jurisdiction to hear the Applicant’s three complaints, the onus being on the Respondent Society to establish lack of jurisdiction on a balance of probabilities. The relevant legislative provisions for the Board to consider in determining jurisdiction in this case are:
Section 68.1(4)1 of the Act which reads as follows:
The following matters may be reviewed by the Board under this section:
Allegations that the society has refused to proceed with a complaint made by the complainant under section 68(1) as required under subsection 68(2).
Section 68.1(8) of the Act which reads as follows:
The Board 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.
Complaint #1 - The allegation by the Applicant that the Society refused to proceed with the written complaints made by the Applicant to the Executive Director and to the Society.
6The Society argued that the Board did not have jurisdiction to hear this complaint since the Society did not have any letters from the Applicant on file. P.C., a case manager for the family, testified for the Society and indicated that she had made efforts to locate letters of complaint from the Applicant using existing protocols and was unable to find any. The Applicant testified that he had hand written a letter to the Executive Director in August 2007 and gave it to the receptionist at the time to pass on to the Executive Director. The Applicant did not take a copy of this letter. The Applicant also testified that he had written other letters to the Society expressing his concerns, but he did not have copies of these letters. He stated that many of his personal belongings were lost during the period in question.
7The onus is on the Applicant to produce the letters he referenced in his application to the Board. He did not attach any such letters to his application, nor could he produce one for the purposes of the hearing. The Board is satisfied that the Society searched its records in an effort to find any existing letters and none were found. The Society produced copies of extensive correspondence it had sent to the Applicant addressing various requests and concerns in the past. Therefore, the Board concludes that without submission of the letters referenced in this complaint the Society is unable to respond and there is no jurisdiction to proceed with a hearing.
Complaint #2 - The Applicant’s concerns that his complaints about constant and continual harassment of the Applicant and his son by the Society have not been heard.
8The Society argued that the Applicant himself had indicated in his application to the Board that the matter he wished to have reviewed by the Board had been previously dealt with in the court. Furthermore, in the view of the Society, the matter was, and is still, before the court. The Society gave evidence that the Applicant had made a motion to the court on December […], 2008 for various relief and explicitly requested that the court make the following orders in his motion materials: “that Dilico will not behave in a malicious manner in regards to my son; and that Dilico will be given an order to explain fully without ambiguity what it desires and why it will not stop harassing my son N.”. The Society argued further that the Applicant has taken the view that the ongoing supervision and involvement by the Society that has been in effect since August 2007 to the present as the result of court orders constitutes harassment.
9The Applicant argued that he clearly understands the distinction between supervision and harassment and that even the presiding Justice at the December […], 2008 hearing agreed that the Society’s behavior, i.e. bringing officers with them at the time of the “Christmas” apprehension, was harassment.
10The Board concludes that on the basis of the Applicant’s own Court materials and statements that the matter referenced in this second complaint is a matter that was put before the court by the Applicant and therefore the Board has no jurisdiction to proceed with this second complaint.
Complaint #3 - The Applicant’s concerns related to the “Christmas” apprehension of his son with respect to the lack of contact between the Applicant and the child during this period and with respect to the lack of appropriate care (nutrition) for the child during this period.
11The Society argued that the matters referenced in this complaint were also before the court since there is an outstanding case to be heard at trial in May 2009 related in part to the events of the Christmas apprehension of the Applicant’s son. The Society confirmed that it had instructed the hospital not to allow the Applicant and N. to have any contact during the time in question. The Society also acknowledged that it had concerns regarding N.’s weight, but that the hospital determined how his dietary needs were met.
12A review of the court documents and other materials did not support the Society’s contention that the subject matter of the third complaint was either before the court or determined by the court and therefore, the Board found jurisdiction to hear this complaint and did so immediately following the hearing on jurisdiction.
13The analysis and conclusion follow on the merits of the third complaint.
ANALYSIS
14At the hearing of Complaint 3, the Applicant provided his testimony and chose not to call other witnesses. The Society’s only witness was P.C., the case manager for the file since August 2007. The Applicant was unrepresented by legal counsel and the Society was represented by legal counsel.
15The relevant legislative provisions for the Board to consider in this case are:
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 services they are receiving.
68.1(4) The following matters may be reviewed by the Board under this section:
Allegations that the society has failed to comply with clause 2(2)(a),
Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.
16The onus is on the Applicant to establish his complaint on a balance of probabilities.
17The Board must determine whether or not the Society heard the Applicant’s concerns and provided him with reasons relating to the apprehension of his son in December 2008.
18The Applicant presented as a difficult person and described his relationship with the Society as uncooperative, distrustful and frustrating. He attributed all of these difficulties to Ms. P.C.. He testified that his son is a special needs child and that he will go to any lengths to protect him. He stated that he was between residences in the fall of 2008 and was planning a move to a two-bedroom apartment on December […], 2008. His friend D.L. had agreed to have N. live with him until that time.
19The Applicant testified that he arrived at the home of his friend sometime in the afternoon of December […], 2008 and found no one at home. He made repeated attempts on that dayto determine N.’s whereabouts. On the same day, he went to the local police station to report that his son was missing and to have them contact the Society to check up on N.’s health and welfare. The police informed him that N. was safe and being well cared for. On December […], 2008, he made contact with an intake worker at the Society who told him that she could not inform him where N. was, but that he was safe. He was also informed by the intake worker to contact Ms. P.C. if he wanted further information. He also contacted other people in the community with contacts with the Society in order to find out where N. was. He was particularly concerned about N.’s well-being and safety since he is a child with special needs and does not exercise the best judgment at times. The Applicant found out on December […], 2008 where N. was when he went to court, but he did not find out why N. had been apprehended and placed on a Form 3 in the [Centre]. In the Applicant’s view, N. was living at a home that was a good home and one where he was contributing. The home of his friend D.L. was clean, N. had his own bedroom and the Applicant had regular contact with him. N. was returned to the care of the Applicant on December […], 2008 and complained to his father that he did not get enough to eat while in the hospital. The Applicant said that he learned from hospital staff that Ms. P.C. had advised the hospital to deal with N.’s excess weight and gave them instructions regarding N.’s diet. The Society had made it clear throughout to the Applicant that they would not let him know N.’s whereabouts.
20Ms. P.C. testified for the Society and recounted that she was supposed to get off work at noon on December […], 2008. Sometime before noon, the Society received a call from D.L., N.’s temporary caregiver, who indicated that he was not prepared to care for N. any longer and that the Society needed to come and pick him up. D.L. informed the Society that he was concerned about retribution from the Applicant. The Society did not know the Applicant’s whereabouts and had to take N. into care. The Society chose to bring police with them to apprehend N. because of concerns about his behavior and the possibility he might run. N. went willingly with the police and did not exhibit any emotional response. The Society gave D.L. a Notice of Apprehension and information on the Society’s complaint procedures and contact information to give to the Applicant.
21The Society had made many attempts to get N. assessed since their involvement in August 2007. They had been unsuccessful in their numerous attempts to obtain the Applicant’s consent. The Society made a decision to not inform the Applicant about N.’s whereabouts due to concerns for his safety. N. lacked insight and had run away in the past and on one occasion had been found in an abandoned house. The Society believed that N.’s safety and security would be jeopardized if the Applicant knew where he was. The Society decided to take N. to the hospital in order to obtain a psychiatric assessment instead of placing him elsewhere.
22According to the Society’s records, it heard from the police at 10 p.m. on December […], 2008 and from the Applicant 11 p.m. the same evening. Ms. P.C. testified that the police informed the Applicant that N. was in a safe place and that she saw N. on December […], 2008 and he was doing well. She further testified that she had considerable experience at attempting to communicate with the Applicant. She indicated that he has either walked away at these times or become excessively confrontational and that, generally speaking, it is not possible to have a regular conversation with him.
23Ms. P.C. testified that she did not provide direction to hospital staff regarding N.’s diet. She did provide previous reports including information about dietary concerns and weight.
24The Board concludes that the Society was faced with the need on an emergency basis to provide a placement for N. on December […], 2008 since they did not know his father’s whereabouts. The Society chose to place him on a child psychiatric unit based on his needs, as they understood them at the time. The Board heard the Society’s explanation for not allowing any contact between the Applicant and N.. The Board also heard that the Society made no efforts to contact the Applicant at the time other than leaving the Notice of Apprehension with D.L. which the Applicant never saw because D.L. had apparently left his residence in fear of the Applicant. The unknown whereabouts of the Applicant on Christmas Eve did not allow an opportunity for the Applicant to be heard regarding the proposed placement of his son. It did not appear that the Society made any further attempts following the apprehension to advise the Applicant of N.’s placement or to arrange access. The Society never provided a detailed explanation to the Applicant as to the reasons for denying access and location information to the Applicant father during the Christmas apprehension of N. contrary to section 68.1(4)(5) of the Act. Therefore, pursuant to section 68.1(7)(d) of the Act, the Board orders the Society to provide detailed written reasons for the actions it took regarding the Christmas apprehension of N. limited to a full explanation of the reasons for the choice of a psychiatric facility as a placement for N., the denial of location information to the Applicant, and the denial of access to the Applicant. The Board orders that the Society comply with this order within 14 days of the date of this decision.
25The second part of the complaint about the lack of appropriate care (nutrition) for N. during the period December […], 2008 to December […], 2008 was not supported by the evidence. The Board concludes that although the Society may have provided information to the hospital about concerns regarding N.’s weight and diet, the hospital was responsible for meeting his nutritional needs during this period (and not the Society) and therefore the Board dismisses this part of the complaint.
CONCLUSION
26The Board orders the Society to provide detailed written reasons for its actions regarding the Christmas apprehension of N. limited to a full explanation of the reasons for the choice of a psychiatric facility as a placement for N., for the Society denying the Applicant information as to the location of his son and as to the actions of the Society in denying the Applicant access to his son during this time period. The Board dismisses the second part of the complaint about the lack of appropriate care (nutrition) for N. during the period December […], 2008 to December […], 2008. The Society is to provide the detailed written reasons referred to above within fourteen (14) days of the date of this decision to the Applicant with a copy to this Board. The Board remains seized of this Application until this order has been fully complied with by the Society.
Gregory Price
Presiding Member
Gail Gonda
Board Member
Ruth Ann Schedlich
Board Member
Dated at Toronto, Ontario this 30th day of March, 2009.