G.R. & A.B. v. Halton CAS, 2009 CFSRB 33

CHILD AND FAMILY SERVICES REVIEW BOARD

G.R. & A.B.

v.

Halton CAS

REASONS FOR DECISION ON MERITS

Date: July 21, 2009

Citation: 2009 CFSRB 33

Indexed as: G.R. & A.B. v. Halton CAS (CFSA s.68)

INTRODUCTION

1On May 8 and June 8, 2009, the Child and Family Services Review Board (the “Board”) conducted a hearing of the application of G.R. and A.B. (the “Applicants”) regarding complaints against Halton Children’s Aid Society (the “Society”) pursuant to subsections 68.1(4)4 and 5 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”) which state:

68.1 (4) The following matters may be reviewed by the Board under this section:

4. Allegations that the society has failed to comply with clause 2(2)(a).

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

2Section 2(2)(a) of the Act reads as follows:

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

3The Applicants raised a number of concerns about the services their child J.R., born February […], 1993, received while he was in the care of the Society under a Temporary Care Agreement from January […], 2009 to March […], 2009.

4Upon review of the Pre-Hearing Report dated May 1, 2009, there was a list of thirteen issues raised by the Applicants. At the hearing, the Board advised the Applicants that it does not have the authority to determine issues of alleged negligence or to award damages which may arise from such a claim. The Applicants were reminded that the Board does not have any investigative authority and therefore, could not determine the appropriateness of a placement. The Applicants were advised further that the issue before the Board was whether their concerns regarding J.R.’s care under the Temporary Care Agreement were heard and whether they were given an explanation for decisions made by the Society during this same period. In particular, the Board heard the Applicants’ allegations concerning:

1. A Plan of Care meeting held on February […], 2009;
2. The provision of therapeutic services for J.R.;
3. Their worker J.S.;
4. How the Society handled sexual assault allegations against J.R.; and
5. Whether the Society provided them with reasons for not extending the Temporary Care Agreement beyond March […], 2009.

BACKGROUND

5The Applicants’ son, J.R., came into the care of the Society after J.R. threatened to harm them on January […], 2009. J.R. had a broken ruler with a sharp edge and threatened to cut their throats. The Applicants called the Police and the Police removed J.R. from the home because the Applicants did not want him to remain there. J.R. was on probation for two previous theft convictions and was charged with breach of probation. The Police later phoned the Applicants to advise that a placement was being sought for J.R. at [Facility], a six-bed coed group home for teenagers in [ ].

6The Applicants previously placed J.R. with the Society in April 2008 because they found that they were unable to control him and were seeking help from the Society. He was placed at [Facility], however, after one night there he went AWOL and the Applicants decided not to return J.R. to [Facility] because they felt that the Society could not keep him safe.

7On January […], 2009, the Applicants signed a Temporary Care Agreement with the Society for the period January […] to February […], 2009. The Applicants signed an extension of the original agreement to March […], 2009. On or about March […], 2009, there was an incident at [Facility] and the Police were called. A female resident had alleged that J.R. had sexually assaulted her. J.R. was arrested, but was later released. On March […], 2009, J.R. was transferred to [ ], a group home located in [ ]. On March […], 2009, J.R. was returned to the Applicants’ care.

ISSUE 1: Were the Applicants heard and represented when decisions affecting their son were being made at the Plan of Care meeting on February […], 2009?

8After a child is admitted into a Society’s care, there is a requirement that a Plan of Care meeting, which includes the child and his parents, be scheduled. Ms. G.R. contacted the protection worker, J.S., on January […], 2009 to inquire about a Plan of Care and was told that they could attend the meeting which was to be scheduled on or about January […], 2009. Ms. G.R. testified that she was later told by [Facility] that the Applicants could not attend the Plan of Care meeting because there was a No Contact Order in place prohibiting contact between J.R. and his parents. Ms. G.R. stated that she was not aware of the No Contact Order and later found out that the Police inserted it as a condition of J.R.’s release when he was removed from their home on January […], 2009. As a result of the No Contact Order, the Applicants could not talk to or see J.R..

9The Applicants assumed that the Society was responsible for getting the No Contact Order removed and allege that the Society did nothing in this regard. On January […], 2009, Ms. G.R. received a telephone message from M.H., Residential Worker, who advised that she should contact the Crown to deal with the No Contact Order.

10Ms. G.R. wrote to the Senior Crown Attorney, B.O., on January […], 2009 and requested that the Police remove the No Contact Order. B.O. responded by letter dated January […], 2009 and suggested that J.R. ask Duty Counsel to meet with the Crown to get the condition removed at the next court date on February […], 2009.

11Although Ms. G.R. was of the opinion that the Society did nothing to assist J.R. with getting legal representation, M.H.’s evidence was that she instructed [Facility]’ staff to set up an appointment with Legal Aid Ontario and one was arranged for February […], 2009. There was evidence before the Board that J.R. had obtained a legal aid certificate. Although the Applicants contacted the Society on several occasions to find ways to participate in the Plan of Care meeting, they were not included in the meeting that was held on February […], 2009.

12The Society is obligated to provide a copy of the plan developed at the Plan of Care meeting and it is the family service worker’s obligation to do so. The Applicants were never provided with a copy. The Board does not accept A.B.’s testimony (Ms. J.S’s Supervisor) that the Society could not provide the Applicants with a copy of the written Plan of Care because it did not have J.R.’s consent. J.R.’s consent was not required because he was under sixteen years of age at the time.

13The Board finds that the Society failed to provide the Applicants with an opportunity to be heard and represented when decisions affecting J.R. were being made at the Plan of Care meeting. Even with the No Contact Order in place, the Society was obligated to consult with and keep the Applicants informed about the Plan of Care. The Applicants could have been involved in a different way, for example, through consultation via telephone. As such, the Board finds that the Society failed to comply with s. 2(2)(a) of the Act.

14Although the Society failed to comply with its obligations in relation to the Plan of Care, there was no breach on the Society’s part regarding the No Contact Order. The lifting of this Order did not relate to a service provided by the Society. The Society had no authority to vary or remove the No Contact Order—it was something that had to be dealt with in the criminal justice system. The Board notes that the Society went beyond its statutory obligations when it provided assistance to the Applicants as to how the condition could be lifted.

ISSUE NO. 2: Did the Society hear the Applicants’ concerns about the therapeutic services that were being sought for their son?

15Ms. G.R.’s evidence is that from her initial contact with J.S. and M.H., she made every effort to ensure that the Society was aware of J.R.’s need for assessment and treatment. The evidence from M.H. is that as soon as she became involved with J.R., she identified that the family needed support and that J.R. needed to engage in some individual counseling. She then tried to get J.R. into individual counseling at [Centre]. She presented this option to him on numerous occasions, but J.R. refused to attend. M.H. testified that J.R. stated that he would only go to counseling if he was ordered to do so by a Judge. When J.R. went to Court on February […], 2009, he was ordered to attend counseling. M.H. attested that after the court attendance, the staff a [Facility] began to arrange appointments for J.R. with [ ], a drug treatment program, [the Centre], and the John Howard Society for anger management. Ms. G.R. confirmed this in her testimony.

16The Board finds that the Society acted in a constructive manner in an attempt to meet J.R.’s needs in a short period of time. The Society could not force J.R. to attend counseling, and he only indicated a willingness to attend counseling after court on February […], 2009. Although Ms. G.R. was of the opinion that the Society did not act in providing the necessary support, she admitted that the Society did listen to her concerns.

17It appears that the Applicants had unrealistic expectations about the assistance the Society could provide to J.R. in the month between the date J.R. was ordered to attend counseling and his sixteenth birthday. The Applicants had hoped that the Society could access services and that J.R. would have gained some benefit from these services before he returned home. M.H. gave evidence that after J.R. left [Facility], he wrote to everyone on staff thanking them for their support, telling them that he had learned from them and that he hoped he could return to [Facility] as an adult to help other children. M.H. stated that on March […], 2009, after J.R. was discharged from the Society’s care, both J.R. and the Applicants hugged her.

18The Board finds that the Society listened to the Applicants when they asked that therapeutic services be provided for J.R.. It is clear that once J.R. was ordered into counseling, the Society obtained services from (CENTRE), [the drug treatment program] and J.H. (although the Applicants dispute the particular program obtained at J.H.). The fact that these services were arranged for J.R. in a very short period of time indicates that the Society listened to and acted on the Applicants’ concerns regarding the services required for their son. As such, the Board dismisses this complaint.

ISSUE NO. 3: Did the Society listen to the Applicants’ concerns about the worker, J.S.?

19Ms. G.R. gave evidence that on numerous occasions she raised concerns about the worker, J.S., who the Applicants felt was not doing her job. Ms. G.R.’s evidence is that she was not happy with the services provided by J.S. even after the first intake meeting on January […], 2009. So she went to the Society’s office and asked the person at reception to speak with her supervisor, A.B.. A.B. did not come to speak with her, but J.S. did. Ms. G.R. indicated that she told J.S. that she did not want to speak to her, but wanted to speak to her supervisor, A.B.. A.B.’s evidence is that she was not aware that Ms. G.R. wanted to speak with her after their first intake meting. Later, she spoke to Ms. G.R. who raised her concerns about J.S.. A.B.’s evidence is that she told Ms. G.R. about the complaint process, but Ms. G.R. was not interested. Ms. G.R. also testified that she complained to Ms. M.H. and the staff at [Facility] about J.S.. Ms. M.H.’ evidence is that she was aware of Ms. G.R.’s concerns about J.S. and that she and staff at [Facility] redirected Ms. G.R. back to J.S..

20The Board finds that although Ms. A.B. knew about the Applicants’ concerns about Ms. J.S., there was no evidence that she heard their concerns or acted upon them. To say to the Applicants that there is a complaint process does not indicate that the Society heard their concerns. The Applicants are entitled to be heard, pursuant to section 2(2)(a) and should not be required to initiate a formal complaint process in order to be heard.

21Therefore, the Board concludes that the Society failed to comply with s 2(2)(a) of the Act when it did not listen to the Applicants’ concerns about the services which J.S. provided.

ISSUE NO. 4: Did the Society hear the Applicants’ concerns about how it handled the sexual abuse allegations?

22J.R. was arrested on March […], 2009 after a female resident at [Facility] alleged that she was sexually assaulted by him. Ms. G.R.’s evidence is that she received a call from [Facility] advising of the incident and informing her that J.R. had been moved to [ ]. The next day, M.H. told her that [ ] is a coed residential group home in [ ] and gave her the address of the home. Ms. G.R. attested that she spoke to both M.H. and J.S. about retaining counsel for J.R. to deal with this matter. Ms. G.R. felt that she was not getting any response from the Society and that the Society was only “protecting itself”. Her evidence is that she contacted the investigator at Halton Police and then took J.R. out of [ ], under false pretenses, to the Police Station where he gave a videotaped statement without legal counsel. She then took him back to [ ] and advised him not to speak with anyone at the Society.

23The Board finds that the Applicant did not give the Society an opportunity to hear or respond to any concerns she may have had about how the Society responded to the sexual assault allegations against J.R.. Although she wanted the Society to obtain legal counsel to represent J.R., she took him without the Society’s knowledge to the Police Station to give a videotaped statement. Ms. G.R. testified that she took these steps without the advice of legal counsel. In taking control of the issue within twenty-four hours of the sexual abuse allegations being made, the Society was not made aware of the Applicants’ concerns and therefore, had no obligation to respond. Therefore, this complaint is dismissed.

ISSUE NO.5: Did the Society hear the Applicants’ concerns and provide them with reasons for its decisions to not extend the Temporary Care Agreement beyond March […], 2009?

24The Applicants entered into a Temporary Care Agreement from January […], 2009 to February […], 2009, which was J.R.’s sixteenth birthday. Ms. G.R. attested that as J.R.’s birthday approached, she had some difficulty getting the Temporary Care Agreement extended beyond February […], 2009. She was told by Ms. J.S. that the Society does not keep children in care past their sixteenth birthday. On February […], 2009, Ms. G.R. signed an extension of the Temporary Care Agreement to March […], 2009. It was her evidence that the Society had wanted to extend the Temporary Care Agreement to May 2009, but she decided that J.R. would more readily agree to remain in the Society’s care if the extension was for a shorter period of time. She also gave evidence that J.O., a Society employee, told her that they would have no problem extending it for another month at the end of March […], 2009. Ms. M.H.’ evidence is that J.R. did not want to extend the initial Temporary Care Agreement beyond February […], 2009, since he did not want to remain in care.

25M.H.’ evidence is that J.R. was ambivalent about contact with his parents. He knew that his mother cared for him and was aware that his mother was getting updates from both [Facility] and the school. M.H. attested that after J.R. came into care he did not know if he wanted to return home. He did not want to stay in care, but wanted to live with a family friend which Ms. G.R. opposed. However, by February […], 2009, he had changed his mind, decided to remain in care and signed the Temporary Care Agreement.

26Ms. G.R. attested that as March […], 2009 approached, she recognized that J.R. was not ready to return home and she requested a second extension of the Temporary Care Agreement. On March […], 2009, Ms. G.R. faxed correspondence to J.S. asking that she begin the process for the second extension of the Temporary Care Agreement. The Applicants sent another letter to J.S., dated March […], 2009, acknowledging that they were aware that J.R. was sixteen and would need to agree to any further extension of the Temporary Care Agreement.

27The Applicants also sent a letter dated March […], 2009 to M.H., with a copy sent to A.B., stating their desire for a second extension of the Temporary Care Agreement. Ms. G.R.’s evidence is that both Ms. J.S. and A.B. told her that because he was now sixteen, the Society could not extend the Temporary Care Agreement any further. Ms. G.R. was also told that the matter was discussed with both the Director and Executive Director. Ms. G.R. stated that sometime around March […], 2009, J.S. told her that the Society wanted to cancel the Temporary Care Agreement and wanted to drop J.R. off. Ms. G.R. admits that she did not return any subsequent calls with respect to the early termination of the Temporary Care Agreement before March […], 2009.

28Ms. A.B.’s evidence is that the Society reviewed the letters sent by Ms. G.R. with their Director who indicated that the Society no longer had jurisdiction because J.R. was sixteen years old. Ms. A.B.’s evidence is that she could not confirm that it was a Society’s policy, or that this decision would be made in all cases. However, this is the decision that was made in this case. Ms. A.B. further stated that at this time, J.R. was indicating that he no longer wanted to remain in the Society’s care and wanted to go home. The Society could not extend the Temporary Care Agreement since this consent would be required and J.R. did not consent.

29The Board finds that the Society did not provide the Applicants with accurate reasons for its decision not to extend the Temporary Care Agreement beyond March […], 2009. Section 29(2)(9) of the Act prohibits the Society from entering into a Temporary Care Agreement with a child which is sixteen years or older. This section reads as follows:

29(2) No temporary care agreement shall be made in respect of a child,

(a) who is sixteen years of age or older

30However, there is nothing in the Act which prevents the Society from extending a Temporary Care Agreement entered into before the child is sixteen years old, beyond the child’s sixteenth birthday. In this case, the Temporary Care Agreement was extended beyond his sixteenth birthday on February […], 2009 with the Director’s consent. Further, Ms. G.R. was told that they would be able to extend the agreement on a monthly basis, if needed.

31Therefore, the Board finds that the Society failed to provide accurate reasons for refusing to extend the Temporary Care Agreement beyond March […], 2009. Although the Board has determined that the Applicants were not provided with reasons and can order the Society to provide same in writing, the Board believes that the Applicants have obtained the reasons at the hearing and in this decision. The evidence during the hearing was the Society could not grant a second extension of the Temporary Care Agreement beyond March […], 2009 because J.R. had turned sixteen and no longer agreed to remain in the Society’s care. In any event, the request by the Applicants for an explanation as to why the Temporary Care Agreement could not be extended became a moot issue before the Board. Ms. G.R. testified that she no longer wanted J.R. to remain in the Society’s care following the sexual assault allegations.

CONCLUSION

32The situation faced by the Society, the Applicants and J.R. was a very difficult one. J.R. was placed in the Society’s care approximately one and one-half months before his sixteenth birthday. The Applicants were having difficulty with J.R.’s behaviour and in obtaining services for him. The Applicants believed that by placing J.R. in care, the Society would have greater access to scarce mental health services for youth in Ontario. This was not a realistic expectation and one which the Society could not possibly meet.

33The Society, although faced with a demanding situation, failed in some instances to meet its statutory obligations under section 2(2)(a) of the Act. As part of the service which people seek or receive from it, the Society must listen to parents’ concerns and act on them. Reasons for significant decisions, which affect children, must be also conveyed. In this case, the Society failed to involve the Applicants in key decisions and provide explanations for some of the decisions it made. Most notably, the Society failed to involve the Applicants in the Plan of Care meeting and failed to give them a full explanation as to why the Temporary Care Agreement could not be extended beyond J.R.’s sixteenth birthday.

34The remedy for the Society’s failure to provide an accurate explanation as to why the Temporary Care Agreement was not extended a second time is to order that a written explanation be provided under subsection 68.1(7)(d). Because the Applicants are now aware that the second extension was not granted because the Society did not have J.R.’s consent to remain in care, there is no need to order the Society to put this explanation in writing. Furthermore, as noted above, the requirement to provide an explanation became moot shortly after the sexual assault allegations when the Applicants decided they no longer wanted the Temporary Care Agreement extended.

35The Board wishes to make a final comment regarding the services provided by M.H. to the Applicants. The Board found the evidence of M.H. to be forthright, clear and consistent, which was very helpful in deciding the issues before it. Whenever the evidence of Ms. M.H. was contradicted by another witness’ evidence, the Board accepts her evidence. It is also clear from the evidence heard, that M.H. provided the family with great support and assistance, including ensuring that transportation for J.R. after he was placed at [Facility] to and from school was arranged prior to leaving on vacation. Her actions were clearly appreciated by the Applicants and their son J.R..

Jennifer Scott

Presiding Member

Celia Denov

Board Member

Denyse Diaz

Board Member