CHILD AND FAMILY SERVICES REVIEW BOARD
D.D.
v.
Children’s Services of the Waterloo Region
REASONS FOR DECISION ON MERITS
Indexed as: D.D. v. Children’s Services of the Waterloo Region (CFSA s.68)
INTRODUCTION
1D.D. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on May 25, 2009 under section 68 and 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The Applicant is complaining about the Family and Children’s Services of the Waterloo Region (the “Society”).
2A pre-hearing was held on June 22, 2009. The pre-hearing report states:
The Applicant’s complaint was found eligible under Section 68.1 (4) (4) and 68.1 (4) (5) of the Child and Family Services Act (the “Act”). The Applicant’s concerns relate to the placement and treatment of her children while in care. The Applicant complained:
- That the Society has failed to comply with clause 2(2)(a) of the Act which states “that 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 services they are receiving.”
- That the Society has failed to provide her with reasons for decisions that affect her interests.
- That her daughter, thirteen, and son, eight months, were removed from her care in February, 2009 and were placed in separate homes, even though many relatives came forward to have the children placed with them.
- That the Applicant received no information from the Society about how the decisions were made regarding the children’s placement.
- That the Society did not think of the children’s well-being as identified by her concerns in their decision making.
3The hearing was held on July 22, 2009 and July 30 2009. First, the Board heard objections to the support person chosen by the Applicant and determined that the support person could attend the hearing. Second, the Board heard the Society’s motion on jurisdiction. The Board determined that it could proceed to hear the merits and did so. The reasons for these decisions follow.
4The Board has decided that it will address certain access issues raised by the Applicant except relating to the suspension of visits over an alleged altercation between her and her worker. The Board has decided that it will not address the issue of the Child Abuse Registry. The Board’s reasons for these decisions are found below.
5The issue for the Board on the merits is whether or not the Society complied with its obligations under sections 68.1 (4) 4 and 68.1 (4) 5 of the Act. The Board must determine if the Society gave the Applicant an opportunity to be heard when she raised concerns about her children and the services provided by the Society. The Board must determine if the Society provided the Applicant with reasons for decisions that affected her interests. For the reasons that follow, the Board has determined that the Society failed to provide the Applicant with the requisite opportunities to be heard except with respect to the period after June […], 2009 regarding kin placements. Further, for the reasons that follow, the Board has determined that the Society failed to provide the Applicant with reasons for decisions that affected her interests.
6The Board provides the following background.
BACKGROUND
7The Applicant is the biological mother of J.M., born April […], 2008 and R.G., born July […], 1995. She is the paternal aunt and was the legal guardian of M.D., born May […], 1995. Over the last several years she has been involved in a sporadic relationship with G.M., the biological father of J.M., who faced allegations relating to M.D. and is not permitted near the children except J.M., with Society approval.
8On February […], 2009, the Society apprehended the Applicant’s children, R.G. and J.M., and placed them in separate foster homes. Family members, including an Aunt, D.M. (“Aunt D.M.”), were present during and immediately following the apprehension but the children were not placed with them.
9A Protection Application was commenced and was before the Court on February […], 2009. An Interim Order placed the children in the Society’s care and the Applicant was allowed supervised visits at the discretion of the Society. The Applicant had her supervised visits at the agency.
10The Applicant wanted to visit with her son at Aunt D.M.’s on Easter weekend (his birthday). This visit was cancelled at the last minute. She wanted to attend her daughter’s confirmation but was not permitted to do so. Another issue arose with respect to her travel overlapping with that of R.G. on the bus.
11The Applicant wanted the children placed with her or, if not possible, with family. No kinship placement ever occurred and the Applicant says that she did not hear from the Society as to why not or why it took so long to explore these options and, in particular, placement with Aunt D.M. or her mother, P.D. (“P.D.”).
12The daughter, R.G., was allowed to visit Aunt D.M. on weekends and attend church. R.G. was placed with a Sunday School teacher and then, in a group home – both suddenly, and without notice. The Applicant had several concerns about the group home and how the placement occurred.
13The Applicant wanted her daughter in counselling with her counsellor, Ms. R.K.. This was arranged by the Applicant because her worker did not respond to her request. However, her daughter missed sessions while in care.
14At the Risk Hearing (Temporary Care and Custody Hearing) completed on June […], 2009, the Honourable Justice Lynch returned the children to the Applicant’s care subject to Society supervision. As a condition of keeping the children, the Applicant was required to attend personal and domestic violence counselling. The Applicant thought Ms. R.K. was approved as her counsellor but received a letter from the Society saying she must attend domestic violence counselling elsewhere.
Support Person
15At the outset of the hearing, the Society raised objection to the support person requested by the Applicant. The Applicant wanted Mr. C. to attend to support her and confer with her but not to address the Board or actively participate in the hearing. The Board heard the submissions of the Society and of the Applicant and permitted Mr. C. to attend the hearing as the Applicant’s support person.
16The Society was concerned because Mr. C. has a long history of involvement with the Society on other matters and has a peace bond prohibiting contact with Society employees because of this history. However, the peace bond was amended to specifically permit Mr. C. to act as support person to the Applicant at her hearing, at the discretion of the Board. The Society was also concerned that this would set a precedent and that Mr. C. might seek to be a support person in further hearings.
17Under the Board’s Rules of Procedure:
- In addition to the applicant and the Society, the Board may determine that the following persons may attend the hearing:
(b) one other person of the applicant’s choosing
18The Applicant should generally be permitted to select the support person of his or her choice. However, had the peace bond not been amended, it would have prevented the Applicant from having Mr. C. present. However, it was amended to explicitly allow for that option. The Board heard no evidence from the Society of disruptive behaviours from Mr. C. in the context of Review Board proceedings. The Board could not speculate as to what might happen in this or future hearings involving Mr. C.. The amendment to the peace bond related only to Ms. D.D.’s hearing. After releasing its ruling allowing Mr. C. as support person, the Board made it clear to all parties and to Mr. C. that the Board controls its process, that it would not tolerate any disruptions and that Mr. C. could consult with the Applicant but was not to address the Board.
JURISDICTION
19The Respondent brought a motion, challenging the jurisdiction of the Board. The Society took the position that the subject of the complaint was an issue that was decided by and is before the Court. The Society relied on s. 68.1(8)(a) of the Act which states that:
68.1 (8) 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;
20The Society submitted that once a matter is before the Court, all matters are before it and the Board has no jurisdiction. The Society also submitted that the Applicant did not provide particulars about the complaint regarding when and where these issues took place or who was involved with them. According to the Society, this rendered it too difficult for the Society to respond to the complaints and for the Board to deal with the complaints.
21The relevant grounds for the Society’s motion are reproduced below:
The complainant is a Respondent in a Protection Application currently before the court. She is represented by counsel. All matters which are before the court are outside the jurisdiction of the Board. In particular, the issues regarding removal of the children from the complainant’s care and any potential kin placements were before the court at a recent risk hearing and remain before the court.
The Society takes the position that the complainant has failed to satisfy the “threshold” requirements set out in the Child and Family Services Act. In particular, the Society takes the position that the complainant must do more than “tick off” boxes indicating matters which are within the Board’s jurisdiction. Specifics of alleged failures of the Society are required.
With respect to section 2 (2) (a), the Respondent Society takes the position that insufficient particulars have been provided to allow the Board to determine that threshold requirements have been met. The only particulars given relate to placement issues which, as noted above, were and are currently before the court. The Society submits that any other complaint D.D. may have under this section is so vague that to proceed would offend against the rules of procedural and substantive fairness and natural justice.
In the alternative, should the Board disagree with the Children’s Aid Society of the Regional Municipality of Waterloo’s position on jurisdiction, the Society submits that in order to comply with the fairness requirements of the Board’s Rules of Procedure, further particulars are required from D.D..”
22In its motion, the Respondent also raised grounds relating to inaccuracies in the file (3), failure to respond to a complaint (4) refusal to proceed with a complaint, failure to respond to a complaint within regulated timeframes and failure to comply with the complaint review process or other procedural requirements (5).
23At the commencement of the motion, the Board advised the Respondent that since the application was found eligible only on the basis of s. 68.1 (4) 4 and 68.1 (4) 5 of the Act it would not be necessary to address their motion grounds 3, 4 and 5. The eligibility letter dated May 26, 2009 clearly indicates the basis on which the application was to move forward.
24At no time did the Applicant present any information to suggest that she had an internal review which would permit the Board to look at inaccuracies in the file. Nor was there any information before the Board that the Applicant had filed a formal complaint with the Society. The application was not deemed eligible on these bases and as such, the Board at the hearing did not concern itself with jurisdictional questions in this regard.
25The Society’s only evidence on the motion was the Affidavit of B.W., sworn July […], 2009. The Applicant did not have questions for Ms. B.W. on her affidavit in support of the motion. The Society did not submit any court documents including the affidavits filed with the Court. The Board requested a copy of the most recent Court order which was provided and which the Board considered on the motion.
26In addressing the Society’s motion, the Board looked at whether or not it had jurisdiction to proceed with the complaint under the eligible grounds: s. 68.1 (4) 4 (incorporating s. 2 (2) (a) of the Act) and 68.1 (4) 5 which provide as follows:
s. 68.1 (4) The following matters may be reviewed by the Board under this section:
s.68.1(4)4 Allegations that the society has failed to comply with clause 2(2)(a).
s.68.1(4)5 Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainants interests.
s.2(2) (a)
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; and …
27The Board had to decide:
Whether or not the subject matter of the complaint were matters that had been decided by or were before the Court.
If there was a lack of particulars, did this deprive the Board of jurisdiction or otherwise preclude the Board from proceeding with the hearing?
Decided By or Before the Court
28In terms of the hearing on jurisdiction, the Board requested submissions on the issues in the complaint identified in the pre-hearing report as well as on the specific issue of counselling /approval of a counsellor. The counselling issue arose because of an undated letter from the Applicant’s counsellor to the Society that the Applicant submitted to the Board on June 10, 2009, prior to the hearing.
29The Board has decided that it has jurisdiction. This is so because the subject matter relating to whether or not the Applicant was heard about her concerns about kin placements, placements in foster care/the group home and counselling and whether or not she was given reasons for decisions relating to these matters were not issues decided by or before the Court.
30The Society argued that placement issues and the issue relating to the counsellor were matters that had been decided by and were before the Court and thus, the Board had no jurisdiction. Counsel argued that any matter that was or could be raised before the Court could not be reviewed by the Board. The Applicant argued that her complaint dealt directly with herself and her children as recipients of Society services and that the issue of how her family was treated by the Society was not before the Court. Her complaint was not about why the children were taken into care which she acknowledged was before the Court.
31Counsel for the Society stipulated that the Society had discretion regarding the placement of the children up to the time of the temporary care and custody hearing. She also stipulated that the Society and not the Court chose the specific placement of the children when they were under the care of the Society by Court order. Counsel also stipulated that although a court must consider any less intrusive placements and kinship plans and could order a kinship placement, the Society had the residual power, following prescribed steps to place temporary society wards in kinship placements.
32The children were apprehended in February of 2009. They were placed immediately in separate foster homes. The Applicant’s evidence was that to her knowledge, family members came forward on the date of apprehension and subsequently with plans for the children that she supported over foster care. Child protection proceedings were before the Court on February […], 2009. No kinship plans were put before the Court at that time. An interim order was made placing the children in the care of the Society.
33At the risk hearing of June […], 2009, counsel for the Applicant apparently advised the family court that there were no kinship placements before the court. From the Applicant’s standpoint, the lack of possible kin placements was due to the Society’s failure to listen to her and follow through. At the risk hearing held June […], 2009, the children were returned to the care of the Applicant with certain stipulations.
34The term “before the court” is not defined in the Act. The Board has a specific statutory mandate to address participatory rights and interests in the process of Society decision making and service delivery. The right to be heard, for example is a participatory right that impacts on a parent’s interests when important decisions are being made about her children. This right exists under s. 2 (2) (a) of the Act so that parents can have a say in and be informed about actions taken by Societies including actions that can alter their lives and those of their children. The Courts have their own statutory and in some cases, parens patriae mandate to make binding decisions on issues of substance relating to children and families. Issues of substantive child protection, custody and the granting of access are not decided by the Board and fall within the Court’s mandate. Conversely, the Court will rarely examine whether a Society took into account the views and wishes of a parent or provided them with reasons for decisions that relate to the services provided by Societies that might be linked to the steps taken by a Society with respect to an issue that is ultimately before the Court. The distinction is one of the inclusiveness and fairness of the Society process versus the substantive outcomes.
35There may be instances in which a Court has decided an issue that might involve Society process. If the Court has made a finding in this regard, it has decided the matter and that decision is binding. There would be no point in the Board examining an issue that has been finally determined even if it was a matter more typically dealt with by the Board.
36Court applications and applications to the Board will involve facts in common. Simply because facts are recited in an affidavit that is put to the Court, does not mean that the Court will or must decide an issue that falls within the Board’s mandate. The Court must be clearly put in a position to address the issue by way of specific request or have actually determined the issue.
37In terms of helping to define the respective roles of Courts and the Board, it is important to look at the source of decision making under review. The Board’s role is with respect to the Society’s decisions. Under section 68 and 68.1 of the Act, the Board has an oversight role with respect to Societies. The function of the Board is to ensure that the Society complied with its statutory obligations with respect to complaints and concerns about society services. With respect to s. 68.1 (4) 4 and 5, the function of the Board is to ensure that the Society complied with its obligations to listen to parents and to provide them with reasons for decisions affecting their interests. The function of the Board is not to review the decisions of the Court. Where a decision is in the hands of the Court, the Board has no role. However, when a decision is in the hands of the Society, the Society has statutory obligations and the Board has a clear mandate over those obligations.
38Wherever the Society has discretion because the matter is in the investigatory stages for example or here, where the Society has decision-making power delegated by the Court or statute, it is the Society that decides and is obliged to listen.
39If the Board does not have the power to review the use of court delegated discretion by the Society with reference to the Society’s obligations, there will be no body vested with that authority and there will be no oversight over issues relating to communication with and treatment of parents when decisions are made.
40In this regard, the Board finds that where the Society has the power to act as a decision maker even if that power is delegated by the Courts, the matter has not been decided by and is not before the Court. This is so because the Court has seen fit not to decide the issue and to trust in the Society to do so. The Society cannot circumvent its obligations to parents under the Act by saying that its delegated discretion to make decisions does not require parents to be heard or provided with reasons for decisions.
41With respect to kinship placements, the Applicant questioned why the children were initially placed in foster homes when family was available. This relates to their initial placement before court proceedings were even commenced. Clearly during the time leading up to the filing of the child protection proceedings, this issue was not before the Court.
42Once the court had become involved, the Applicant identified her concerns with what she perceived as the ongoing failure of the Society to follow through with kinship options and to hear her concerns or provide her with explanations in this regard. No kinship plans were put before the Court. While the Court had an obligation to consider any less intrusive placement or any plan before it, where no plan was presented at the time, the issue was not before the Court. The issue was however put to the Society. The Society had the authority to investigate kinship options and to place the children in a kin home as the temporary custodians for the children. The Court did not decide that no kinship options could be considered. Once the Court made the children temporary wards of the Society, custody vested with the Society but no placement decision was made because that was within the control of the Society as temporary parent. To clarify, what the court decided was custody and not placement. Placement in a kin setting was, as stipulated by the Society, a decision that it could make provided it followed appropriate procedures.
43Similarly, regarding placements in foster care and the group home, the Society had the power as temporary parent to place the children in its care in specific foster homes and a group home. The Court did not delve into placement issues and decided only that the Society had custody. The Society exercised complete authority over placement and the issue was not decided by or before the Court.
44With respect to counselling for the daughter, part of the mother’s overall concern was the well-being of her daughter which she felt, in her complaint and as indicated in the pre-hearing report, was not being taken into account when the Applicant raised concerns. The Applicant wanted counselling with the same counsellor to address R.G.’s well-being, yet R.G. missed sessions. The request for counselling arose while the daughter was in care and before the Court’s endorsement of June […], 2009.
45The endorsement of Justice Lynch does not address the issue of counselling for the daughter, R.G.. There was no evidence offered to suggest that the issue of counselling for the daughter was even put to the Court. The Board finds that the issue of counselling and ongoing approval of Ms. R.K. as counsellor for the child R.G. was the Society’s decision alone as temporary parent and that the court played no role whatsoever regarding this issue.
46With respect to approval of a counsellor for Applicant, the Applicant commenced counselling and she and her counsellor met with the Society at some point between March, 2009 and June […], 2009 while the children were in temporary care. The Court’s June […], 2009 endorsement placed the children in the mother’s care, under Society supervision. As conditions of this placement, the Court required the Applicant to attend and successfully complete counselling for personal issues including domestic violence and under a separate term, counselling for victims of domestic violence. Both types of counselling were required by the Court to be at an agency approved by the Society.
47Pursuant to the June […], 2009 endorsement, the decision maker with respect to who would be chosen to counsel the Applicant was not the Court. Rather, it was the Society that had the authority, delegated by the Court to use its skills and resources to make the decision at hand. Because the Society and not the Court was the decision maker, the appropriate avenue for the Applicant to be heard regarding choice of counsellor was at the Society, consistent with the Society’s obligations under the Act. It is possible, as the Society suggested that the Applicant could have gone to court and sought to have the Court appoint a counsellor. At that time, the decision would be out of the hands of the Society. This has not occurred and the issue remains in the hands of the Society.
48Further, based on the letter from the therapist, it appears that the Society was engaged in some sort of support for and thus decision making relating to the involvement of the counsellor with the Applicant prior to the existence of the Court Order. Thus, during the preliminary stages of this aspect of the complaint, the Society had the power to make any relevant decisions and thus the concomitant obligation to hear the Applicant.
49Finally, the Society led no evidence that the Court had been asked to examine the conduct of the workers relating to any of the above concerns to determine if the workers had listened to the Applicant’s concerns and provided her with reasons for decisions.
50The issues in the application addressed above were not decided by or before the Court. The Board had jurisdiction to proceed to a hearing on the merits.
Particulars
51The Board decided that issues relating to particulars did not preclude it from proceeding to hear the application.
52The Society argued that there was a lack of particulars, rendering the complaint so vague that it would be unfair and contrary to natural justice for the Board to proceed with a hearing on the merits. The Society framed this as an argument going to jurisdiction. In the alternative, if the hearing proceeded, the Society sought an order for further particulars. The Society acknowledged that there were particulars relating to placement but said that placement issues were before the court. The Applicants position was that she had provided sufficient particulars.
53The Board had to determine if there was a lack of particulars and if so, did the lack of particulars deprive the Board of jurisdiction or otherwise preclude the Board from proceeding with the hearing.
54The Board determined that the jurisdiction of the Board is not affected by the issue of particulars. An alleged lack of particulars relates instead to the issue of fairness. A lack of particulars will not prevent the Board from proceeding to a hearing but could affect how the hearing is conducted.
55In terms of fairness, the Board concluded that there were sufficient particulars to proceed to a hearing. Further, the Board determined that any deficiency in terms of more detailed or new information could be cured by allowing for extra time or adjournments in the interests of fairness.
56The Applicant provided the following information in her application to the Board:
My children were removed from my care in Feb. 2009 My daughter 13 and son 8 mons at the time were placed in separate foster homes even though many relations came forward to have the children placed with them. The social worker told my family that the process of having the children placed with family would take time. My daughter was removed from foster care and placed in a group home within 48 hrs with no reason given to me. My daughter is a straight A student who attends church regularly on her own and is now living in a group home with children with charges and behavioural problems. This decision only took 24 hrs however placing my children with family has yet to be approved. My social worker has made false allegations against me and continues to do so. I have tried working with her and she always states that it is out of her hands but does not tell me whose hands it is in. My children are at risk of significant emotional harm if this continues and I am very concerned for them but my social worker and her supervisor are not. I have tried to speak to others but the social worker seems to cut me off before I can speak to others.
57The Applicant also provided to the Board on June 10, 2009, an undated letter from her counsellor, R.K. to B.W., her worker at the Society, and a Senior Manager (Exhibit A2). While the letter is addressed to the Society’s instructing client at the hearing, Ms. B.W., it is not clear whether or not this letter was forwarded to the Society by the Applicant as being part of her application to the Board. Society counsel was not familiar with the letter. The letter raises the issue of approval of /attendance with a counsellor for the daughter and the Applicant.
58From the pre-hearing report, it is clear that the respondent requested further particulars and the Applicant agreed that she would try to provide further particulars. The Board did not require her to do so. The Applicant did not file further particulars.
59The Board finds that it was clear from the application and from the pre-hearing report that the Applicant had concerns about the placement of her children including that they were separated, that the daughter was placed in a group home and that the children weren’t placed with relatives.
60The pre-hearing report also broadly states that the Applicant felt she was not heard or given reasons for decisions that affected her interests, that her concerns relate to the treatment and placement of her children in care and further, that she did not feel the Society thought of the children’s well-being as identified by her concerns, in their decision making.
61The Board finds that it is not necessary for Applicants to particularize every detail in their Application to the Board or otherwise through a statement of particulars in order for there to be a fair hearing.
62Generally speaking, the pre-hearing will identify the issues. Within the framework of the issues, the parties should come prepared to lead evidence and respond.
63The administrative tribunal process is meant to be the process of the people. The Board should be as accessible as possible to those who appear before it. Unrepresented applicants before Tribunals like the Board should not be subjected to a civil standard of pleadings akin to those prepared for the courts by lawyers. Nor should the Board be precluded from hearing the Applicant’s story because parts of the account are not relevant or include additional or “new” concerns.
64The issue for the Board in examining such new information as part of the complaint (as opposed to context only) is first, is the additional concern related to the main complaint and second, where the party did not have notice of the information, what if anything can be done to ensure the party has an opportunity to respond? To the extent that new facts and related concerns arise in a hearing that come under the umbrella of the broader issues, these can be addressed by allowing additional time or adjournments to the responding party.
65In this case, new information was raised at the motion on jurisdiction (counselling) and additional particulars and issues came out during the evidence.
66With respect to the motion on jurisdiction, the question of whether or not the Applicant was heard or provided reasons in relation to approval of/attendance with a counsellor for the Applicant and her child was identified by the Board for the purpose of submissions. This was so because the issues relating to the counsellor were raised indirectly by the Applicant by virtue of the letter from Ms. R.K. that she submitted to the Board. This information was not specifically articulated in the application. It was new information to Counsel for the Society who was not counsel at the pre-hearing. The letter is addressed to a Society affiant, the instructing client at the hearing, B.W.. The Applicant was unrepresented and could not have been expected to know how to formally identify this issue.
67First, the Board determined that the concern about counselling and approval of counsellor fell within the general rubric of the issue of whether or not the Applicant had been given an opportunity to be heard when a decision affecting her interest was made (who the Society will approve to counsel her given her preference in this regard and decisions relating to the child’s non attendance at counselling when the mother identified concerns about the child’s well being). The concern also related to whether or not the Applicant was provided with reasons for any decisions that related to approval of a counsellor and the non-attendance of her daughter. The issue of counselling was linked to the placement of the children with the Applicant mother, to the daughter’s well being and her treatment by the Society. The child’s well being is further connected to that of her mother and her mother’s counselling needs.
68Second, the Board determined that since this was additional information related to the initial complaint, it would cure any potential prejudice to the Society by allowing additional preparation time and, if needed, an adjournment. In the interests of fairness, this was best accommodated after the testimony of the Applicant at which time the details of her concerns would be before the Board and the Society.
69At the conclusion of the Applicant’s testimony, counsel for the Society was asked how much additional time she needed to address new information, including that relating to the counsellor. She advised that she required an additional hour, which time was allotted for additional preparation. At the resumption of the hearing, counsel made no request for additional time. The Society then cross-examined the Applicant. The Society did not call Ms. B.W., the witness with direct evidence relating to the counselling issue at that time. At the end of the first day of hearing, prior to the Society calling its next witness, the Board adjourned the proceedings early to allow the Society time to address new information. The hearing resumed eight days later. B.W. was never called by the Society.
70The Applicant raised issues relating to her access to (contact with) her children. The Board has decided that it will deal these concerns except for one.
71As part of the narrative of the evidence of her complaint, the Applicant recounted several concerns relating to access to the children including concerns relating to a birthday/Easter visit, bus travel and confirmation. The Society objected to this evidence and asked how it was related to placement. The Society’s position was that the Board had no authority to hear this evidence or deal with access related issues because this was a new issue and the issue of access was decided by the court.
72The Board advised that issues of access at the discretion of the Societies have been heard by the Board in the past. In this case, the Board advised that it would hear the evidence and decide subsequently how to deal with the information.
73The Applicant also led evidence relating to suspended access visits following an alleged altercation between she and her worker. The Board has decided that it will not deal with the alleged altercation and the concerns about access related to the allegation. This concern is not connected to the issues in the complaint as clarified in the pre-hearing report. This concern did not relate to the treatment of the children in care but rather, to the treatment of the Applicant. The Applicant did not, through her evidence, relate this issue to the consideration of the well-being of the children which is the crux of her complaint.
74The access issues raised by the Applicant with respect to her son’s birthday/Easter weekend, her daughter’s confirmation and being on the bus with her daughter are connected to the Applicant’s concern that the Society did not take into account the children’s well-being and are also intertwined to some extent with placement issues and the children’s treatment while in care. The Board has decided that it will deal with these issues as they fall within the ambit of the overall complaint.
75While access issues represented new information, the Respondent was specifically invited by the Board to respond to all access issues raised. The Respondent was given additional preparation time prior to cross-examining the Applicant. Further, the Respondent had eight days between hearing dates in which to prepare to respond to these issues. The Respondent did not request a further adjournment to respond to these issues. The Board was satisfied that once given particulars, the Society was given the opportunity to respond.
76With respect to whether or not the access issue was decided by the Court, the court order was for supervised access to the Applicant at the discretion of the Society. The Board adopts its reasoning above with respect to delegated decisions. Specifically, the Court decided only that access was to be supervised and that the Society was to be the decision maker as to when and how access would occur. The decision maker as to the logistics of access was the Society and the matter was not decided by or before the Court. There was no evidence that the court was asked to address the conduct of the worker in terms of whether or not she gave the applicant an opportunity to be heard and reasons for the access related decisions.
77The Applicant raised a concern that she had not been provided with reasons for being placed on the child abuse registry. The Board has decided that it will not deal with the issue relating to whether or not the Applicant was provided with reasons for the placement of her name on the child abuse registry. This concern arose in the context of the Applicant’s evidence and her cross examination of the one Society witness. The Applicant did not link this concern to her overall complaint. This concern is an issue as between the Applicant and the Society and does not relate to the placement, treatment or well-being of the children.
DECISION ON THE MERITS
78What follows is the Board’s decision with respect to the Applicant’s concerns relating to placement, counselling and access and whether or not the Society complied with its obligations under s. 68.1 (4) 4 and 5 of the Act.
PROCEDURAL MATTERS
79The Applicant was self-represented, testified on her own behalf and did not call other witnesses. The Society was represented by C.B. and called L.S., the Child Protection Worker who handled the case from February […], 2009 until February […], 2009, to testify. The hearing commenced on July 22, 2009. The Applicant testified and the Society was provided with additional time to address new information prior to cross examining the Applicant. The Society called L.S.. The hearing was adjourned until July 30, 2009 to permit the Society to address new information.
80When the hearing reconvened on July 30, 2009, the Society chose not to call any more witnesses. The Society submitted court documents and a letter to the Applicant’s counsel dated June […], 2009 to demonstrate that it heard the Applicant and provided her with reasons for decisions relating primarily to the status of family placements. Counsel for the Society relied only on portions of the court documents that she had highlighted. Counsel for the Society pointed out each highlighted section of the affidavits that it sought to rely on as evidence and the Applicant responded with further testimony to the highlighted sections and to the letter to her counsel. Counsel for the Society was then given an opportunity to cross examine the Applicant. The Board relied only on the highlighted portions of the court documents. The Society chose not to take any further opportunity to present evidence through oral testimony. The Society was content that the Board make its decision based on the evidence before it, including the fact that it had heard direct evidence from the Applicant and not from the affiants. The Society did not tender these documents on the motion for jurisdiction and the Board did not have them when it made its decision on jurisdiction.
81The Applicant made several requests for “disclosure” of the Society’s file during the hearing. The Board advised that it would not order “disclosure” at large but that should case notes be relevant, it would re-visit the issue as the hearing progressed. One case note was provided by L.S. during her testimony and entered into evidence and the Board and the Applicant reviewed another case note that was not admitted as the witness read from it verbatim.
82At the conclusion of the first hearing day, the Board ordered the Society to produce to the Applicant all case notes that demonstrated her raising relevant concerns and the Society’s response to those concerns. The Society did not object provided there was an undertaking that the Applicant would not use the documents except in court or this hearing. The Board instructed the Applicant and her support person that they were under an implied undertaking not to use the documents outside of the application and that the Board was restricting the use of documents to this hearing only.
83When the hearing re- commenced on July 30, 2009, the Society did not call any witnesses and, thus, the issue of case notes did not arise. In her submissions, the Applicant advised that no case notes had been provided by the Society. The Society did not provide these case notes nor did it seek to introduce them.
84Given the paucity of evidence from the Society, the Board was left primarily with the Applicant’s version of many events. Further, where direct evidence conflicted with that in an affidavit, the Board preferred the vive voce evidence.
ANALYSIS
Care and Placement of Children
85The Board finds that the Society did not hear the applicant regarding her concerns about the well being of her children relating to the placements of the children in separate foster homes, R.G.’s placement near G.M., R.G.’s placement in the group home, access for J.M.’s birthday/Easter, R.G.’s confirmation and bussing overlap with the Applicant and R.G.. Further, the Society did not provide the Applicant with reasons for its decisions regarding these concerns.
86The Applicant’s complaints concerned the placement of and treatment that her children received while the children were in the care of the Society. In her view, her concerns were not addressed and she was never given answers, or reasons for the Society’s decisions. She felt that her children, R.G., in particular, suffered significant emotional harm during this time. The February […], 2009 case note of L.S. confirmed the Applicant’s extreme concern over R.G. while she was in foster care and refers to counselling.
87Following the apprehension, the Applicant was not consulted about the placement of her children who were placed in two separate foster homes. (Issues relating to kinship are dealt with below). The Applicant was given only superficial reasons why they were not placed together. She was told that it was because the children were different ages.
88L.S., the Child Protection Worker initially involved with the Applicant, testified that the children were placed in separate homes because of the vast difference in ages. There were different homes which looked after infants and teenagers and they could not be placed together. L.S. testified that she did not explain to the Applicant why the children were separated.
89The Applicant was also concerned because R.G. was placed within two blocks of G.M., who was facing sexual abuse allegations. She did not call the Society. Ms. L.S. agreed that the Applicant did not express concern to her about R.G.’s proximity to and possible contact with G.M.. Ms. L.S. was unaware that the Applicant knew where R.G. was placed. She did not have an issue with R.G.’s placement because G.M. was under house arrest and could not be out without assurances.
90The Applicant testified about several concerns when R.G. was taken out of her foster home and put in a group home. The Applicant was not informed of the problems in the foster home or given notice of the move. Sometime in April, the Applicant’s daughter called her and asked her to come to Tim Horton’s where an aunt worked. R.G. had left her suitcase, backpack and a scooter. The foster mother had told R.G. to take her belongings because she would not be returning to the foster home. The Applicant called R.G.’s worker and she also called B.W. four times, but could not reach them. When the Applicant got home, there was a message from R.G.’s worker saying there was no problem in the home and that R.G. had “made it up”. There was no evidence of further contact or explanations from that worker.
91R.G. was then placed for the weekend with A.W. who was a Sunday school teacher. There was no explanation given as to why R.G. was not allowed to go to Aunt D.M.’s or how the Sunday school teacher was approved so quickly. On Monday, R.G. “texted” the Applicant to say that she was taken out of school and placed in a group home. The Applicant left a message for B.W. who in turn left her a message which said that there had been a break down at the foster home and that R.G. would be placed in a group home. She told the Applicant to call her tomorrow and that “she might be in”.
92R.G. was placed in a group home in [city X] which is an hour drive from her school in [city Y]. The Applicant had many issues with this placement and was concerned about the emotional impact on her daughter. She was placed in a home where many of the children have records and many restrictions were placed on her. The Applicant felt that R.G. was being kept like a prisoner and only allowed out of the group home for fifteen minutes each day. The Applicant asked B.W. several times in May to lift the restrictions. The distance of the placement from her school curtailed her participation in school activities. The church which R.G. attended was in [city Z] and she did not have a ride there. Aunt R. who is a youth leader offered to pick her up for church but she was not allowed. The Applicant asked B.W. about this situation and was told that making these arrangements take time. However, A.W. was approved quickly and allowed to take R.G. for the weekend. R.G. attempted to go to church by taking the bus. The priest became involved and attended at the group home. Eventually, R.G. lost interest in going to church. According to the one Society witness, Aunt R. was ultimately approved to drive R.G. to church. The Applicant testified that she had never been made aware of this approval.
93The Applicant was concerned for the emotional harm to her children due to the lack of family presence in their lives. For example, R.G. was confirmed in April, but the Applicant was not allowed to attend since she was not allowed to be anywhere near R.G. without a Society worker present. The Applicant wanted her son, J.M., to visit with her at Aunt D.M.’s home on Easter weekend to celebrate his first birthday. She had asked for this visit two weeks in advance, but was told at 4 p.m. the day before that J.M. would not be allowed to go.
94In paragraph 34 of her affidavit of April […], 2009, B.W. states that she met with Aunt D.M. on April 8 to ascertain her plans for the Easter weekend. Aunt D.M. said that she already had a full house and that R.G. and J.M. could spend the weekend at the Applicant’s home. B.W. told Aunt D.M. that this was not what the Applicant had told her. In paragraph 36, B.W. described a meeting with the Applicant when the Applicant showed up at the Society on April […], 2009, having left two messages for Ms. B.W.. She told the Applicant that she had met with Aunt D.M. and that the plan that the Applicant had proposed to her was not the one that was arranged with Aunt D.M.. She said that they could arrange for R.G. to spend the weekend at Aunt D.M.’s if Aunt D.M. agreed, but they would not make any arrangements for J.M.. She says the Applicant left before the meeting ended.
95The Applicant and Aunt D.M. did not see J.M. and there was no make-up visit.
96The Applicant raised concerns about bus travel to access. When the Applicant and R.G. took the same bus for several minutes to get to their access visits, the Applicant was told to take a subsequent bus. She was told that this was because she was not allowed unsupervised access. It took approximately one month to arrange a driver. There was no other evidence to indicate the Society’s response to this concern.
97The Board accepts the evidence of the Applicant that her concerns for the care of her children were not heard and that she was not given meaningful, timely reasons for the decisions that were made. From the Applicant’s testimony, there appears to be a lack of communication on the part of Society workers to the Applicant. L.S. testified to the reasons why the children were placed in separate homes and why they were not concerned that R.G. was placed so close to the home of G.M.. However, providing reasons for the first time or more detailed reasons at the hearing does not satisfy the Society’s obligations. The Society was aware of the problem with placement near G.M. but did not contact the Applicant to advise that it had considered R.G.’s safety and that it had concluded she was safe and the reasons for that conclusion.
98The Society did not present any evidence regarding the Applicant’s other concerns regarding her children’s placement and care except for the issue of the birthday/Easter visit which was described in a court document. The portions of the affidavits relied on by the Society did not shed any light on the above issues except in relation to the birthday visit/Easter weekend.
99With respect to the birthday/Easter visit, though the Applicant’s plan for the weekend did not coincide with Aunt D.M.’s, the Society did not listen to or facilitate the Applicant’s wish to see her son on his birthday. Based on the available evidence, the Society provided a decision at the last minute and only provided reasons when the Applicant showed up at the office, having left two (presumably unanswered) messages. At the meeting, no alternative means of facilitating the Applicant mother’s concerns were addressed. While the Applicant may have left before the conclusion of the meeting, there is insufficient evidence to attach significance to this one way or another.
100There is no evidence that the Society called or met with the Applicant to hear her perspective or to try and resolve concerns with respect to the initial placements in foster care, the concerns about the group home, the confirmation or the bussing overlap. The Applicant testified as to the brief reasons given to her, such as “because of their ages” or “this takes time” or “there was a breakdown in the foster home” or “you cannot have unsupervised” contact. Based on the evidence of the Applicant, the workers were inaccessible and relayed decisions when they were “fait accompli”, rather than acting in a consultative manner in advance. To the extent that reasons were given, they were not meaningful in that they did not offer detail or explanations of the factors considered in decision making. In one instance, with respect to Aunt R.’s approval to drive to church, there was a positive decision which was not even communicated to the Applicant, despite her request for the approval.
101The Society failed to comply with its obligations under s. 68.1 (4) 4 and 5 of the Act with respect to the above concerns.
Kinship placement
102The Board has decided that the Society did not hear the Applicant’s concerns about kin placements from February […], 2009 until June […], 2009. On June […], 2009 the Society provided the Applicant’s counsel with an opportunity to address the issues. The Board has decided that at no time, did the Society provide the Applicant with reasons for decisions relating to kin placement and in particular, with respect to Aunt D.M., the Applicant’s mother, P.D. and delays in the process.
103The Applicant’s position was that she had, from the outset wanted the children placed with family if they could not be placed with her. The Society did not follow up with her and she was unaware for the most part of what was happening regarding kin placement. When she asked for information, she was given curt responses and not explanations. The Society’s position seems to have been that the Applicant didn’t support kin placements, did not ensure her family members followed through and that the Society kept her informed, with reasons, including through court documents and the letter to her lawyer on June […], 2009.
104The Applicant testified that at the time of the apprehension, several family members were present and willing to take the children. Aunt D.M. and “Uncle D2.” went with L.S. to the Society’s office to discuss a placement with Aunt D.M.. Criminal reference checks were done. The Applicant was told that someone would contact Aunt D.M. the next day and that the process of kinship takes time. This is consistent with the evidence of Ms. L.S..
105Foster homes were available for the children that night and the children were placed there. The Applicant’s position was that the children should be returned to her, but failing that, they should be placed with family. She was invited by the Society to attend a meeting with her family on February […], 2009 to determine possible kinship plans for the children. She did not attend because she was advised by her lawyer not to attend since the children should be with her. She felt that since her family members would be there, she could add nothing. But as far as she knew, kin options were being considered. None of her family attended the meeting since there was a death in the family. The meeting did not occur and no one contacted the Applicant to advise her of this or to ask her to attend another meeting. No further meeting was scheduled.
106According to L.S., another worker met with Aunt D.M. the day after the apprehension, at her home. The meeting was set for February […], 2009 so that family members could present their plans. She was notified by the Applicant’s lawyer that the Applicant would not be attending. The meeting was not rescheduled since the Court hearing was the next day. Her supervisor had spoken to Aunt D.M., but the Society needed to meet certain (unspecified) requirements for placement of the children. R.G.’s biological father, M.G., intended to get custody of R.G. but wanted to wait until the school year was over.
107Between February […] to […], 2009, Ms. L.S. said that she had several conversations with the Applicant and raised the issue of family care. However, according to Ms. L.S., the Applicant wanted the children returned to her. She advised that the Applicant had some concerns with family members because R.G. would have to change schools even if she lived with Aunt D.M.. She and her supervisor spoke to Aunt D.M. and the Applicant about getting plans. In the worker’s view, the Applicant was not concerned about plans.
108L.S. stated that the Society had concerns with Aunt D.M. because she did not believe that there were protection issues with the children. She was also a long time friend of G.M.. She said that she “would have” told the Applicant of the Society’s concerns but could not provide the case note indicating when or what she told her. Counsel did not seek to re-call her on the second hearing day. The adjournment would have permitted the witness to search for further notes.
109Ms. L.S.’s case notes of February […], 2009 clearly indicate that placement with Aunt D.M. was an option for the Applicant. After February […], 2009, Ms. L.S. was no longer the worker and had no say in terms of placement. The new worker was B.W. from whom the Board had only certain portions of affidavits filed with the Court.
110In B.W.’s affidavit of May […], 2009, paragraph 15, B.W. states that “with regard to D.M., I have spoken to L.S. and believe it to be true that an initial home assessment had been done however, there had been some concerns noted with respect to D.M.’s understanding of the protection concerns”. There was no indication of follow up with the Applicant. The affidavit did not state when Ms. B.W. had spoken to Ms. L.S..
111The information in the Affidavit of April […], 2009 and the other excerpts from Court documents relied on by the Society do not indicate the reasons for the presumed lack of approval of Aunt D.M.. To the extent that concerns are mentioned it remains unclear what decision was made and the significance of the information referenced. More importantly, there is no indication in the Affidavit materials that the concerns were communicated to the Applicant.
112In B.W.’s affidavit of April […], 2009, paragraphs 28, 30, and 31, she states that on April 2, the Applicant left her a message that she had spoken to her lawyer and that at this point the issue of kinship was best discussed amongst the lawyers. The interim plan was to place the children with her mother, P.D. but R.G. would stay with “D1.” and “D2.” [an aunt and uncle] until school ends. The Applicant said that she would get “D1” and “D2.” to contact Ms. B.W.. B.W. met with the Applicant on April […], 2009 at the Cambridge Visiting Center and asked about the relatives who wanted to put in a plan and asked why no one had come forward. The Applicant replied that she couldn’t speak for them.
113The Affidavit of Ms. B.W. dated May […], 2009 indicates that the Applicant told Ms. B.W. that Aunt D.M. would probably withdraw her plan. The Applicant’s evidence was that she told the Society she did not know what was going on and that they would need to check with Aunt D.M..
114The Applicant stated that she was never told or given reasons why Aunt D.M. was not given the children. There was little communication with Society workers. She was told to ask Aunt D.M. and Aunt D.M. was told to ask her. She raised concerns about the delay in dealing with kinship options and no reasons were given to her for delays. She was not given a response as to why approving the Sunday school teacher happened so quickly but approvals for her family did not. When she asked, she was always told that the matter was out of the Society’s hands and in the Court’s hands.
115The undated letter from the Applicant’s counsellor, Ms. R.K., clearly puts forward a plan involving Aunt D.M. caring for the children with the Applicant in the home. The Applicant never received a response to this letter.
116By the end of May, the Society through Lennox-Addington Children’s Aid Society had completed an assessment of P.D., the Applicant’s mother. The Applicant was not told of the outcome of the assessment nor the reasons why directly by the Society but heard from third parties.
117The portions of the Court documents relied on by the Society address reasons for delay in contacting the Applicant’s mother but not the substantive reasons for her being refused. There may have been some confusion about whether the Society intended the Board to review all of paragraph 32 of the Affidavit of B.W. dated June […], 2009 because it was not fully highlighted. However, because this paragraph was referenced in the letter to counsel, discussed below, the Board considered the content of paragraph 32 of the Affidavit of Ms. B.W. and addresses it below.
118The Applicant did not understand the process for filing a plan of care. J.R., R.G.’s children’s lawyer, advised the Applicant how to get the forms and file a plan of care. The Society offered no explanation about the process.
119The Society submitted a letter dated June […], 2009 (Exhibit R4) from S.C., counsel for the Society, to R.Z., counsel for the Applicant, which recounts that S.C. on May […], 2009 had provided B.W.’s business card to R.Z. and that the card had to Ms. B.W.’s knowledge, been given to the Applicant with the understanding that any family members interested in submitting a plan should contact B.W. directly. The Applicant’s understanding of what occurred in relation to the card was not clear. However, her evidence was that Aunt D.M. had submitted a plan from the onset and that her mother, P.D. had submitted a plan in March, 2009. These options were outstanding at the time the card was apparently submitted.
120The June […], 2009 letter also advises that an assessment of P.D.’s plan was completed by Lennox-Addington Children’s Aid Society, that the placement was not approved and that the reasons for refusal were summarized in paragraph 32 of B.W.’s affidavit. In light of the reference in the letter, the Board has considered paragraph 32 of the June […], 2009 Affidavit of Ms. B.W.. The paragraph sets out some concerns but does not go into details about information relied on by the assessor about concerns raised by the Society. The reasons are incomplete. In the letter, the Society was also willing to provide a copy of the kin assessment to counsel provided that P.D. consents to the release.
121The June […], 2009 letter also states that since the court date of May […], 2009, B.W. had not received any communication from any family members with a desire to put in a plan for either one of the children. The letter also advises counsel for the Applicant that in a conversation between B.W. and the Applicant, B.W. was advised that Aunt D2. was no longer an option and that Aunt D.M. may be withdrawing her plan. The letter offers no other explanations regarding Aunt D.M..
122The Applicant said that she was aware of but did not see the June […], 2009 letter to her counsel. However, the Board accepts that she is deemed to have seen it.
123The Board finds that the Applicant was not heard on the issue of kinship placement between February […], 2009 and June […], 2009. On February […], 2009, the day of the apprehension, several family members including Aunt D.M. had indicated an interest in taking the children. The Society went to interview Aunt D.M. the following day. It was not clear that the assessment of Aunt D.M. was completed, although it appears that an initial assessment was done. The Society had concerns about Aunt D.M. which were not communicated to the Applicant.
124From the letter of June […], 2009, described above, the Society was still discussing Aunt D.M.’s plan with the Applicant as late as May, 2009. The Society did not respond to the letter from the counsellor, Ms. R.K.. The status of Aunt D.M.’s kinship application is extremely unclear.
125The Society by delaying its investigation into kin options and not actively following up when confusion arose did not actively listen to the Applicant’s desire for a kinship placement and in effect, denied her the right to be heard. When delays in contacting her mother occurred, there was no evidence that the Society contacted the Applicant for more information or to locate her mother. According to the Applicant, the Society was well aware that the mother was with her, in court.
126While the Applicant had several conversations with her worker about placement with Aunt D.M., she became so frustrated with the lack of progress and information that she asked that the lawyers deal with it.
127The Board accepts that following the letter to counsel of June […], 2009, the Society, by explicitly opening up discussions with counsel for the Applicant, met its obligations regarding the Applicant’s right to be heard relating to kinship options. The letter referenced both Aunt D.M. and P.D. and the possibility of other options. It gave counsel the opportunity to call the Society to discuss any of these issues.
128The Board finds that the Society did not give the Applicant reasons for their decisions regarding kinship placement. The Board accepts the evidence of the Applicant that she was not told why Aunt D.M. was not accepted for a kinship placement. L.S. testified that she “would have” told the Applicant but could not verify when or what she told her. At one point in her testimony, Ms. L.S. purported to be reading from a case note. When the Board sought clarification and when it reviewed the note, it did not say what she had “read”. The witness then clarified that part of her account was from memory. This raised credibility concerns about this witness.
129Facts concerning delay relating to her mother were provided to the Applicant after the fact, in piecemeal fashion in an affidavit in the child protection proceedings.
130To the extent that reasons are provided in the Court documents, the Board does not accept that reasons provided in court documents conform to the Society’s obligations under the Act which should operate independent of the litigation process. Further, a letter to counsel that incorporates only the explanations in the court documents and is not proximate to when decisions were made does not satisfy the Society’s obligation. The information in the letter and the court documents was not timely. The provision of the Affidavits and the letter does not mean that the Society met its obligation to provide reasons at the time that the Applicant raised her concerns about kinship and the delays surrounding kinship assessment. The children were apprehended in February of 2009. Issues regarding kin assessment were raised in February and on an ongoing basis. The request for an assessment of the Applicant’s mother P.D. was made on March […], 2009 and issues relating to delay arose in April. The Affidavits are dated in April, May and June of 2009. The letter was provided on June […], 2009.
131Until June […], 2009 when it clearly opened the door to further input, the Society failed to comply with its obligations to hear the Applicant regarding kin placements. Further, the Society failed to provide the Applicant with reasons for decisions relating to kinship that affected her interests up to the time the children were returned to her. The end result of these failures was overall confusion.
Counselling
132The Applicant raised concerns about counselling for her daughter and approval of a counsellor for herself. The Board finds that the Society has not met its obligation under 68.1(4) 4 and 68.1 (4) 5 in this regard.
133On the recommendation of her lawyer, the Applicant started counselling sessions with R.K. who is a Therapeutic Counsellor with a Master’s Degree in Counselling, specializing in Family Systems, Traumatology and Marriage Therapy. According to the Applicant, R.K. is helping her to recognize her position in an abusive relationship. She submitted a letter from R.K. to B.W., Child Protection Worker and R.W., Senior Manager. In this letter, R.K. outlined a meeting she had with B.W. regarding the Applicant which outlines her therapeutic goals. The Applicant was under the understanding that R.K. was acceptable to the Society as her counsellor. However, in a letter dated July […], 2009, the Applicant was advised to attend counselling for victims of domestic violence at [an Agency]. The letter does not say why.
134The Society argued that the Court order provided two terms for counselling. One was for personal counselling and one for domestic violence counselling, both terms with the choice of the agency at the discretion of the Society. R.K. was approved to be the Applicant’s personal counsellor and the Applicant was to see a counsellor at [the Agency] for domestic violence counselling. The approval for personal counselling and this distinction were not made clear in the letter.
135The Applicant was not provided with an opportunity to make the case for her counsellor whom she thought had already been approved. She was not aware that she had to justify one type of counselling and not the other. She was not given the chance to do so. The Society’s letter is perfunctory and offers no explanation or clarification. The Society did not comply with its obligations under s. 68.1 (4) 4 or 68.1 (4) 5 of the Act.
136The Applicant was concerned with the mental state of her children, R.G. in particular. She thought that since R.G. was put in a group home she was “crashing”. The Society did not provide R.G. with any counselling and she wanted her counsellor, R.K., to speak to R.G.. Ms. R.K. received permission from the Society to see R.G. for counselling. However, R.G. did not show up for her first counselling session and her worker did not provide any notice to Ms. R.K. or respond to her messages. The Applicant had concerns about her daughter’s access to counselling while in care which remain unanswered.
137The Board finds that the Society did not listen to the Applicant’s concerns for her daughter’s mental health issues as they relate to counselling. The Applicant and not her worker set up the counselling. Her worker, Ms. B.W., “shrugged” when she made the request for counselling for R.G.. Even though R.K. was subsequently approved as her counsellor, R.G. did not keep her appointment with Ms. R.K. while she was still in the care of the Society. There was no evidence that the Society discussed this concern with the Applicant. The Applicant was not provided with explanations regarding this concern. The Society failed to provide the Applicant with an opportunity to be heard or with reasons pursuant to sections 68.1 (4) 4 and 5 of the Act.
CONCLUSION
138The Board orders the Society to provide detailed written reasons to the Applicant on the following issues:
- Reasons for the children’s placements in foster care and the group home
- Reasons why the children were separated in care.
- Reasons why options regarding J.’s birthday/Easter weekend were not canvassed and why the decision was conveyed at the last minute and reasons why there was no make up visit.
- Reasons why restrictions in the group home were not addressed
- The decision and reasons relating to approval of Aunt R. as driver and reasons as to why the information was not given to the Applicant.
- Reasons why the Applicant could not be on the same bus as R.G., what other options were considered, if any and why it took so long to put an alternative in place.
- Reasons why kinship placements with Aunt D.M. and the Applicant’s mother, P.D. were refused.
- Reasons for delay in terms of exploring kinship options.
- Reasons why R.G. did not see the counsellor as scheduled.
139The Society shall provide the reasons to the Applicant and a copy to the Board within 30 days of receipt of this decision.
140The Board further orders that the Society respond to the Applicant’s complaint about why Ms. R.K. is not approved as the domestic violence counsellor for the Applicant and why she must go to the [the Agency], within ten days of this order. The Society must give the Applicant an opportunity to be heard about why she feels Ms. R.K. is an appropriate counsellor. An appropriate response would include a meeting with the Applicant to discuss and resolve the issue.
141The Board will not remain seized of this matter but trusts that the Society will implement the orders.
Sheena Scott
Presiding Member
Frances Sanderson
Panel Member
Mary Wong
Panel Member
Dated at Toronto, Ontario on this 24th day of August, 2009