E.G. v. Children’s Aid Society of Hamilton, 2009 CFSRB 64

CHILD AND FAMILY SERVICES REVIEW BOARD

E.G.

v.

Children’s Aid Society of Hamilton

REASONS FOR DECISION ON MERITS

Date: November 6, 2009

Citation: 2009 CFSRB 64

Indexed as: E.G. v. CAS of Hamilton (CFSA s.68)

INTRODUCTION

1On July 23, 2009, E.G. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) against the Children’s Aid Society of Hamilton (the “Society”) pursuant to section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The application was found to be eligible for review under sections 68.1(4)4 and 5 on July 31, 2009.

2A pre-hearing conference was held on September 14, 2009. The Society argued that the Board does not have jurisdiction to hear the application because all of the Applicant’s complaints are issues that have been decided by the Court or are before the Court. The Society also argued that reasons for its decisions are contained in documents that are before the Court.

3The Applicant summarized her complaints into six main issues. Among other issues, she argued that the Society had not provided her with reasons for its decision to not implement the recommendations of the Internal Complaint Review Panel (ICRP) and this decision affects her interests.

4At a hearing held on October 8, 2009, the Board ruled that five of the six complaints were before the Court and the Board had no jurisdiction to hear them. The Board held it had jurisdiction to hear the Applicant’s first complaint that the Society failed to give her reasons for not following through on recommendations made in its ICRP report. Following testimony by the Applicant and cross-examination by the Society on this complaint, the Board reserved its decision. Subsequently, the Board upheld the complaint and ordered the Society to provide written reasons to the Applicant. The reasons for this decision follow.

BACKGROUND

5The Applicant’s daughter, A.G. (the “Child”), d.o.b August […], 2002, was apprehended by the Society in late June 2007. Until an unspecified date in 2009, the Applicant was permitted four hours of supervised access visits at the Society offices. From the time of the apprehension until her application to the Board, the Society had assigned at least seven different staff members, either Social Workers or Parental Service Workers (“PSW”), to the Applicant’s file; T.A., N.C., L.W., S.P., A.J., T.L. and C.F..

6The Applicant understood initially that her daughter’s apprehension would be for a few weeks. Six months later, in December 2007, when Ms. A.J. was the Applicant’s PSW, the Society obtained a Court Order requiring the Applicant to undergo a Parenting Capacity Assessment. The Applicant’s current PSW, Ms. C.F., was the only Society employee who indicated to the Applicant that the Society could not consider any adjustments to its position on access or care and custody until the assessment was completed. When the Applicant requested an ICRP with the Society in May 2008, the assessment report had not been completed.

7The Applicant wrote a letter to the Society on May […], 2008 in which she provided details on five separate complaints. She appeared before the ICRP on July […], 2008. The Society summarized her complaints and provided her with its reply to each complaint by letter dated July […], 2008.

8The Society has applied to the Court for an order seeking Crown Wardship for the Child with access to both parents. The Applicant will contest this application as she wants to regain full custody of her daughter. The Board understands that both the Child’s biological father and the Child’s lawyer will also contest the Society’s application. The Court will hear this matter commencing October […], 2009.

ANALYSIS

Jurisdiction Decision

9The Board must determine its jurisdiction for each of the Applicant’s six complaints.

Procedural Matters

10The Board dealt with two procedural matters at the outset of the hearing into jurisdiction.

1. Counsel for the Society agreed that the Applicant’s support person would be known only as N.C., as per the policy of Interval House, a women’s shelter in [ ].

2. The Society indicated that the grounds for its jurisdiction motion are found in section 68.1 (8) (a) of the Act, not section 68 (12) as contained in its September […], 2009 submission to the Board. Section 68.1 (8) states that:

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.

OTHER RELEVANT LEGISLATION

11The Board has considered the following legislative provisions in arriving at its decision:

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.

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.

12The Applicant’s six complaints brought before the Board, as delineated in the Pre-hearing Report dated September 16, 2009, are substantively different than the complaints discussed at the ICRP more than one year prior to her application to the Board. Her current complaints are summarized as follows:

#1. The Society had not provided her with reasons for not following through on the recommendations of the ICRP, except that a new PSW had been assigned and the car seat issue was resolved.

#2. The Society has failed to hear her concerns regarding her requests for reintegration, unsupervised access and sleepovers. As well, the Society has failed to give her reasons for its decision to continually seek more progress reports regarding her mental health issues.

#3. The Society has not given her reasons for its decision requiring her to encourage her daughter’s relationship with her (the daughter’s) father.

#4. The Society has not provided her with reasons for not following through on the provision of a plan of care.

#5. The Society has failed to hear her concerns about the professionalism of one PSW.

#6. The Society has not heard her complaint about certain aspects of her daughter’s care by the foster family, specifically related to hunger and inappropriate toys.

13The Applicant conceded that complaint #2 will be heard in the upcoming Court proceedings. The Board determined that it does not have jurisdiction to hear this complaint and grants the Society’s motion for this complaint.

14The Applicant indicated that she would not be adducing any evidence in Court on the matters contained in complaints #1, #3, #4, #5 and #6. She believed that these were not matters for the Court, but rather, issues that the Society should deal with as a follow-up to the ICRP. She alleged that she did not have a plan of care (complaint #4). She believed that a letter allegedly promised by L.W. was the reason for the Society suggesting that she discuss her access concerns with Ms. A.J. (complaint #1). Further, the Applicant asserted that her Parenting Capacity Assessment did not require her to encourage her daughter’s relationship with her biological father, but rather not to deny that a relationship existed (complaint #3), and she believed her concerns about the professionalism of her PSW were not a matter for the Court to hear (complaint #5).

15The Society stated that, in its opinion all of the items in complaints #3, #4, #5 and #6 are before the Court. The Applicant’s Parenting Capacity Assessment will be entered as evidence in the Court proceedings and thus is before the Court (complaint #3). A Plan of Care was prepared and served on the Court and the Applicant’s counsel as required under section 57 of the Act; thus this material is before the Court (complaint #4). The PSW alluded to in complaint #5 has filed an affidavit on this matter with the Court and will appear as a witness in the Court proceedings. The Society believes the issue in complaint #5 is before the Court. The Society intends to adduce evidence for complaint #6 via testimony of a witness. The Society believes that the issues in complaint #6 are also before the Court.

16The Society indicated that the Applicant, through her counsel, will be able to cross-examine all of the witnesses being called by the Society during the Court proceedings and will be able to challenge any evidence contained in the various documents and affidavits that the Society has filed with the Court. The Society opined that an examination of these witnesses and materials by the Applicant before the Board would represent an inappropriate duplication.

17The Board agreed with the Society’s submission and concluded that all of the matters raised by the Applicant in complaints #3, #4, #5, and #6 are matters before the Court as each of them relates in whole or in part to the child protection application that is before the Court. Complaint #3 deals directly with the Child’s access to her biological father; a matter for the Court to decide. A Plan of Care is the subject of complaint #4. This relates, in part, to the Child’s access to both parents; a matter for the Court to determine. The long delay by the Society in requiring the Parenting Capacity Assessment (unprofessionalism alluded to in complaint #5) and the quality of foster care (complaint #6) may be factors weighed by the Court in making its determination vis-à-vis the child protection application. As noted in paragraph [12] complaint #2 is also a matter before the Court. For the matters discussed thus far, the Board grants the Society’s motion and will not proceed to hear these five complaints.

18Complaint #1 – the Applicant’s complaint that reasons have not been provided by the Society for not following through on recommendations from the ICRP – requires examination. Although she was unable to recall if the letter was specifically discussed at the ICRP, the Applicant alleged that A.J. promised her a letter which would outline the Society’s intention to make up for “lost visits”, the visitation schedule and expanded access. The Applicant further alleged that she requested this information from Ms. C.F. when she was assigned as her PSW. The Applicant maintains that the Society’s failure to provide her with reasons for not following through is not a matter before the Court. The Society indicated that the items in its report following the ICRP were not recommendations; they were merely a reporting of the facts with a few proposed courses of action. The Society was uncertain if its report from the ICRP would be introduced as evidence in the Court proceedings.

19The Board finds that Society’s failure to provide the Applicant with reasons for a decision it made that affected the Applicant’s interests, specifically not following through on recommendations from the ICRP (complaint #1) is not a matter that has been decided by or is before the Court. The Board denies the Society’s motion and will proceed to hear this complaint. However, the Board will limit the issue that it will hear to the single aspect of the ICRP report of July […], 2009, a proposed course of action that clearly meets this criteria, namely that 6th item on page three of that report;

“With regards to your visitation schedule, the issues of “lost visits” and the expansion of your visitation schedule should be discussed with A.J.. A.J. would review your circumstances and make adjustments as warranted to this schedule.”

Decision on the Merits

20The Board must determine if the Society has failed to provide the complainant with reasons for decisions that affected the complainant’s interests.

21A hearing on the Applicant’s first complaint was held on October 8, 2009.

22The Applicant alleged that she had discussed alterations to her visitation schedule, its frequency and its supervised status with Ms. L.W. in the spring or early summer of 2008. The Applicant alleged that Ms. L.W. had agreed to some changes, particularly with regards to the Applicant taking her daughter to dance classes in a manner similar to their trips to swimming classes. The Applicant testified that she had asked for these approvals in writing from Ms. L.W. but had not received them.

23The Applicant attended the ICRP meeting on July […], 2008. The ICRP released its summary on July […], 2008. In that summary, the ICRP advised that certain steps would be taken by the Society. With respect to the Applicant’s access issue, the ICRP advised that the Applicant should discuss the issue of lost visits and the expansion of her visitation schedule with Ms. A.J. who would review the Applicant’s circumstances and make adjustments as warranted to the access schedule.

24Ms. A.J. was permanently assigned to the Applicant’s file in September 2008. The Applicant believed that Ms. A.J. would provide her with a letter that explained the visitation matters. In January 2009, Ms. A.J. went on maternity leave from the Society and Ms. C.F. was assigned to the Applicant’s file. The Applicant alleges that Ms. A.J. had told her that everything was worked out with the new worker, thus the Applicant assumed the letter with written approvals for visitation alterations would be forthcoming. It never appeared.

25The Applicant firmly believes that there is a communication break-down within the Society. She alleges that too many workers have been assigned to her file and that there is little if any follow-up from one worker to the next. A promise from one worker is not carried out by the subsequent workers. Despite the proposed course of action in the ICRP report, the visitation schedule was not adjusted by the Society following the ICRP meeting, nor was any explanation given to the Applicant for that decision.

26The Society did not challenge the Applicant’s allegations, except to clarify a few dates, clarify the type of material submitted to it by Dr. Z., one of the Applicant’s psychiatrists, and declare that Ms. L.W. would be able to answer all the Applicant’s questions about both the visitations and the letter in Court. The Society could not call Ms. L.W. and Ms. A.J. as witnesses before the Board as they were no longer Society’s employees. Ms. C.F. was present but did not testify; she would do so in Court. The Society did not enter any documentary evidence.

DECISION

27The Applicant alleged that the Society did not provide her with reasons for decisions it made that affected her interests. The Society was obliged to provide meaningful answers to the Applicant concerning its implementation of the course of action identified by the ICRP. The Board finds that the Society did not provide her with reasons for its decision not to explain its position on the visitation schedule, the issue of “lost visits” and the expansion of the visitation schedule. Accordingly, under subsection 68.1(7)(d) of the Act, the Board orders the Society to provide written reasons to the Applicant about its decision to not explain why no adjustments were made to the visitation schedule, within thirty (30) days after the Board’s decision is rendered.

Wendell White

Presiding Member

Lorna King

Panel Member

John Gates

Panel Member