J.G. v. Windsor-Essex Children’s Aid Society, 2012 CFSRB 25

CHILD AND FAMILY SERVICES REVIEW BOARD

J.G

v.

Windsor-Essex Children’s Aid Society

REASONS FOR DECISION

Date: July 11, 2012
Citation: 2012 CFSRB 25
Indexed as: J.G. v. Windsor-Essex Children’s Aid Society
(CFSA s.68)

INTRODUCTION

1This is an application by J.G. (the “Applicant”) filed with the Child and Family Services Review Board (the “Board”) on April 17, 2012, pursuant to section 68(5) of the Child and Family Services Act (the “Act”), regarding the internal complaints process followed by the Windsor-Essex Children’s Aid Society (the “Society”).

2The Applicant wrote a letter of complaint to the Society, dated December 13, 2011. An Internal Complaint Review Panel (“ICRP”) was convened and a meeting took place on March 26, 2012. The Society sent correspondence (the “Summary”) dated April 13, 2012 to the Applicant summarizing the meeting.

3The Applicant is alleging that the Society failed to follow the internal complaints review process as set out in the Act, and that its ICRP failed to hear her concerns as set out in her complaint letter dated December 13, 2011, and failed to provide her with reasons for the response to those concerns. The Society takes the position that the Applicant’s concerns were heard and that it explained its decisions to the Applicant.

4The Board heard the application on June 18, 2012.

5The Board must decide whether or not the Society followed the statutory complaints process, whether or not the Applicant’s concerns were heard by the ICRP, and whether or not the Society gave the Applicant a meaningful response to those concerns following completion of its ICRP process.

6The Board finds that the Society did not follow the complaints review process as set out in the legislation. The Board also finds that in regards to three out of five issues, the Society’s ICRP process did not hear the Applicant’s concerns as required by section 2(2)a of the Act or provide her with reasons for the decisions made in response to those concerns as required by section 68.1(4)5 of the Act.

BACKGROUND

7The Applicant’s complaint is focused on the actions of the Society regarding her daughter […] [the Child], born October […], 1996.

8The Society has a long-standing history of contact with the Applicant, dating back to 2002, with four of these contacts resulting in investigations, which were subsequently closed at the Intake level. The most recent involvement started in August 2011, when an anonymous call to the Society alleged conflict between the Applicant and the Child.

9Prior to August 2011, the Child had been living with the Applicant for the first fifteen years of her life. However, on the same date as the August 2011 anonymous call to the Society, the Applicant also contacted the Society. She told the Society that, in late July 2011, as a result of behaviour that was out of control and was “stressing her out”, the Applicant sent the Child to live with her ex-partner, and did not want her to return home until there had been a substantial change in the Child’s attitude.

10The Applicant’s ex-partner was arrested on November […], 2011 and kept in custody. This resulted in another call from the Applicant to the Society. The Applicant requested that the Society apprehend the Child, and place her back in the Applicant’s home, as a result of the arrest. At the time of the arrest, the Child went to stay at a friend’s house, to which her father agreed.

11On November […], 2011 the Child returned to her father’s home, where she had been living. The other person living in the home was the father’s new partner, whose background (according to the Applicant) made her totally unfit to be the principal caregiver for the Child. The Society looked into the situation, and determined that there were no protection issues which would warrant an apprehension of the Child. This decision was even more confusing for the Applicant, given that she relates that three social workers of the Society had told her over that week-end that the daughter would not be allowed back into the ex-partner’s home.

12The Applicant submitted to the Society her original letter of complaint on December 13, 2011, and re-iterated many of these complaints in her Application to the Board dated April 17, 2012.

13The Applicant applied to the Board for a review of her complaint, and the issues were set out in the Pre-hearing report of May 17, 2012:

“That the Society’s ICRP process has not heard her service concerns or heard her when decisions were made and has not provided her with reasons for decisions that affected her interest regarding the following:

a) The use of drugs by her ex-partner.

b) How the Society handled matters related to when her ex-partner was arrested.

c) Why the Society kept her file at the Intake Level for six or seven months.

d) The Society’s refusing the Applicant information regarding her daughter and to be part of any plan regarding her daughter.

e) The Society’s failure to listen to her and act upon concerns regarding her daughter’s whereabouts, living arrangements, and safety.”

ANALYSIS

14When undertaking an internal complaints process, the Society is obligated to follow the procedures set out in the Regulation and the requirements set out in the Act. The Act requires the Society, in the internal complaints process, to listen to the Applicant’s concerns and to provide reasons for decisions that affect the Applicant’s interests.

15Under section 68(5) of the Act, the Board can review the Society’s decision following completion of the ICRP. The decision under review in this case is the Society’s summary letter of April 13, 2012 (the “Summary”).

16The focus of this hearing by the Board is:

1. Did the Society follow the statutory complaints process?

2. Did the ICRP hear the Applicant’s concerns?

3. Did the ICRP provide reasons for decisions made by the Society?

Did the Society follow the statutory complaints process?

17The statutory complaints process which must be followed when a person makes a direct complaint to a society is found in subsections 68(1) through (4) of the Act and in sections 1 through 10 of Regulation 494/06.

18Under s. 3 of the Regulation, the Society is required to determine whether a complaint is eligible for review. If eligible, the Society is required to notify the complainant in writing and establish an ICRP. This notification did occur, but not within the legislated time frame.

19Section 7(1) of the Regulation requires that an ICRP be scheduled at a mutually convenient time for the complainant and the society, and that it be held within 14 days after the date the written notice is sent to the complainant or at such later time as may be requested by the complainant. Section 7(2) requires the society to make reasonable efforts to accommodate a request by the complainant for a delay in scheduling the ICRP.

20The Applicant’s complaint was dated December 13, 2011. The Applicant testified that she received a letter dated February 14, 2012 from her worker that stated that the Applicant had indicated that she did not want to proceed with her complaint at this time. The Applicant stated that she did not express that view, but that she did wish to proceed. This was the first written communication she had received from the Society several months after her December 13, 2011 written complaint. The Applicant further stated that the same worker contacted her by phone to set up an ICRP meeting and this was confirmed in a letter from the Chief Operating Officer dated March 20, 2012. The Society did not provide any testimony regarding the timing of the meeting and the delay.

21Section 9 of the Regulation requires that within 14 days of the meeting, the ICRP shall send a summary of the results of the meeting, including any agreed upon next steps, to the complainant and the executive director of the society to which the complaint was made.

22The ICRP sent the Applicant the Summary of its March 26, 2012 meeting in the form of a three page letter dated April 13, 2012. The Applicant testified that she did not receive the letter until April 17, 2012 and that the Chairperson of the ICRP had informed the Applicant by phone that the letter would be late.

23The Board finds that the Society did not comply with the requirements of the Regulation regarding notification of eligibility, the setting of a date for the ICRP meeting and providing a timely summary of the ICRP meeting to the Applicant.

Did the ICRP hear the Applicant’s concerns, and did the ICRP provide reasons for decisions made by the Society?

24The further issue before the Board is whether the ICRP met the two criteria in the Act, namely did the Society’s ICRP hear the Applicant’s concerns, and did it give reasons for its decision. The section that the Applicant’s complaint to the Society was based on [Section 68 (5) 2] refers to and incorporates sections 68.1(4) 4 and 5 which include the right to be heard and to be provided reasons as described below.

25The Applicant is entitled to be heard about her complaints, as provided by section 2(2)a of the Act which reads:

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;

26As well, the Applicant is entitled to be given reasons for decisions that affect her interests, as provided by section 68.1(4)5 of the Act:

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

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

27To be heard involves active listening, discussing concerns, taking steps to address concerns and communicating this to the Applicant so that she can feel that her concerns were taken seriously and were looked into. This would indicate to the Applicant, even though she may not agree with the outcome, that she was heard.

28The right to reasons is based on the principle that sufficient information, both factual and contextual, is required to understand decisions that were made. There is a link between the right to be heard and the right to reasons because having information helps people understand and this helps them participate meaningfully in discussions and ultimately, helps in achieving acceptance of the decision made.

29The Board needs to determine whether the ICRP meeting and the Summary of the meeting provided by the ICRP provide a meaningful opportunity to be heard and response to the concerns that were expressed during the ICRP meeting. The Board examined the complaints listed above, and finds that the Society did not hear the Applicant and did not offer reasons for its decisions regarding three of her complaints. The Board’s reasons are outlined in the following paragraphs.

30The Society’s Director of Children’s Services testified that the ICRP meeting lasted one hour and forty-five minutes, and that the Applicant very much was using her original letter of complaint as her notes throughout the meeting.

Issue a) The use of drugs by her ex-partner.

31This issue is grounded in the Applicant’s belief that her ex-partner has a habit of drug abuse, extending back a number of years. In her testimony, she stated that she told the ICRP that the Society did not investigate his drug use, and that she fears for the Child’s safety because of his drug use. She also raised with the ICRP that the Society did not fully explore medical issues of her ex-partner, including getting information from medical sources that may have had contact with her ex-partner.

32In the Summary, the Society outlined the steps it is taking to continually ensure that it is aware of drug use should it occur, and stated that “we are not able to substantiate these at this time”. The Summary further states that the current worker is aware of the Applicant’s concerns, and that she is monitoring this aspect closely.

33The Board finds that the Applicant was heard on this issue, and was given comprehensive answers as to what the Society is doing with regards to this issue.

Issue b) How the Society handled matters related to when her ex-partner was arrested.

34The Applicant in her testimony described telling the ICRP about her concerns relating to the Society’s actions when her ex-partner was arrested late in the evening of November […], 2011. She explained to the ICRP that at that time, she had stressed to the Society that the Child should not be left with the ex-partner’s current partner; the police twice went in and removed the Child from the ex-partner’s current partner, but the Child chose to return there subsequently. On November […], the Society told the Applicant that the Child was safe, and that she was with the ex-partner’s current partner.

35The Applicant testified that she related her concerns regarding her ex-partner’s new partner in great detail to the ICRP members. She also outlined in great detail the problems and dangers she sees if the Child is allowed to remain with the ex-partner’s current partner.

36The Summary of the ICRP reports that, during the week-end of November […], 2011, the Child re-iterated her refusal to return to the Applicant or to be placed with the Applicant’s mother. However, the police did not explore other placement options with the Child and, contrary to police protocol, did not inform the Society of the ex-partner’s arrest and the Child’s resultant placement need until the Applicant contacted the Society. The Society looked into the situation; it saw no immediate protection concerns, but is continuing to monitor the situation.

37The Board recognizes that it is the Society’s decision whether a situation warrants an apprehension or not. However, the Board finds that the Society’s ICRP has not fully heard the Applicant’s concerns in this situation, and has not engaged in a full conversation with the Applicant on this issue. The ICRP Summary could have outlined in much more detail the reasons why the Society did not or could not intervene and whether the ICRP would look into the issue or accepted the worker’s perspective about the Child’s safety. Further, the Applicant raised a concern with the Society at the ICRP that the response at the time was not enough information to allay her concerns. The ICRP Summary does not address the Applicant’s position that in view of the very strong concerns of the Applicant, the brief statement on November […] to the effect that “your daughter is safe, she is with [person] was inadequate. The ICRP Summary provided more detail than the Applicant had at the time but it failed to address her concern about how the worker had responded to her very serious concerns. As the mother of the Child, she was entitled to more discussion and information from the Society. The Summary was silent on the Applicant’s request of the Society as to what background check had been done on the ex-partner’s current partner, in view of alleged concerns about her past.

38The Board finds that, on this complaint, the ICRP did not hear the Applicant because while she had an opportunity to speak at the meeting, the Summary was not responsive to her concerns. There was no evidence that at the meeting, the ICRP considered the Applicant’s concern about how the original decision was communicated. Further, the ICRP Summary did not provide sufficiently detailed information about the original decision and simply did not address the Applicant’s concern about the original cursory “reasons”.

Issue c) Why the Society kept her file at the Intake Level for six or seven months.

39The Society acknowledged the lengthy delay in the file moving beyond the intake level, and gave the reason for this delay in its Summary. The Summary referred to this delay as unusually long, and stated that this delay was “. . . due to the absence of the worker and workload”, in contrast to the norm of one month for a file to stay in intake. While acknowledging the delay, the Society re-iterated its expectation that files are to be adequately serviced according to the needs of the case, regardless of what department carries responsibility for the file.

40The Board finds that, on the issue of the delay in transferring the case out of Intake, the ICRP did hear the Applicant, acknowledged the lengthy delay, and did provide a clear and understandable reason for the delay.

Issue d) The Society’s refusing the Applicant information regarding her daughter and to be part of any plan regarding her daughter.

Issue e) The Society’s failure to listen to the Applicant and act upon concerns regarding her daughter’s whereabouts, living arrangements, and safety.

41The Applicant’s position before the ICRP was that she should have been more involved in her daughter’s life and that the Society ignored her concerns about where she lived and whether she was safe.

42On issues d) and e), the Summary points out that at this time, the Child is under the “de facto” care of the Applicant’s ex-partner, in line with the Applicant’s decision in the summer of 2011 to ask the Child’s father to come and pick her up from the Applicant’s care, and that the Applicant stated that she would be with her father for an indefinite period of time “until her attitude changed”. It is the Society’s opinion that, while it is able to update the mother on the Child’s well being, the fact that the Child was surrendered to the care of her father puts some limits on the mother’s level of involvement and the Society’s role.

43At the ICRP, the Applicant challenged the Society as to why the Child was not placed back with the Applicant, rather than living with her father’s current partner while the Child’s father was incarcerated. As well, the Applicant made repeated requests at the ICRP for the Society to now place the Child back with her. The Summary indicates that the Family Services Worker has addressed with the Child “options to have some contact and/or access with yourself, her brothers or your mother. However, [the Child] is not interested in taking advantage of any offer of contact, including a visit or meeting, at this time.” The Summary encourages the Applicant to continue her dialogue with the Worker, to see if the Child’s position may change with time. This is a perfunctory response that does not deal with the need for information and involvement aside from contact.

44For example, what would have been indicative of hearing from the Applicant would have been for the ICRP to arrange for the Society to engage in ongoing discussions with the Applicant, whereby the Applicant is apprised at least in a general way of how the Child is doing, and whereby the Applicant is afforded the opportunity for meaningful input into the planning process for the Child, having due consideration for the Child’s express wishes not to move back with the Applicant at this time.

45The Board is concerned, based on the ICRP Summary that the Society is viewing the placement of the Child by the Applicant with the ex-partner as if it were a formal custody arrangement. The reference in the Summary to the ex-partner as having “de facto custody” seems to ignore the fact that the Applicant had not given up any of her rights as a parent and long-term caregiver to the Child.

46In addition during her direct testimony on this complaint, the Applicant mentioned in passing, without any details, that parental alienation was occurring. The Society’s Director of Children’s Services acknowledged that this had been presented at length by the Applicant at the ICRP. She indicated that this issue was not dealt with as well as it could be by the Society, and that likely this was related to the delay in transferring the case out of Intake. Subsequently, in her closing statement she stated that one hour was devoted to this topic during the ICRP and conceded that it should have been addressed. The Applicant appears to have seen this issue as a central theme. It was clear that she also felt that it should not have been up to the Child to make the decision where she lived but rather up to the adults, and in particular, up to her, the Applicant, to make this decision.

47The issue of parental alienation was not referred to in the Summary, despite the extensive emphasis the Applicant gave this issue at the ICRP meeting. The Board finds that the Summary gave no reasons as to why this issue appears to be ignored, and gave no explanations or plans as to what steps the Society will take to deal with this issue.

48It appears to the Board that there has been a substantial breakdown in the communication between the Society and the Applicant for the better part of the last year or so, and that it will take work on the part of both parties to re-establish communication and trust.

49The ICRP Summary should represent the Society’s full record of what it did in response to a direct complaint. A review of the Summary should be adequate to demonstrate to those with oversight of the complaint review process, i.e. the Board, whether or not the ICRP met its statutory obligation to listen to complaints and provide reasons for decisions. Given that the ICRP Summary should provide a closure to the ICRP process, it is important for the Society to comprehensively outline in the Summary what steps were taken, the conclusions that were reached, and what decisions were made, and the reasons for such decisions, while respecting the confidentiality required by the Act.

50The Summary sent to the Applicant is deficient in establishing that the Applicant has been heard and given an explanation of the conclusions that were reached. Some of the issues are mentioned in the Summary while others are not. Those mentioned do not indicate that the panel actively listened to the Applicant. If the Applicant was fully heard then the Summary would indicate what the panel did in response to those complaints. A proper Summary would also contain reasons for various decisions made, and next steps that need to be taken to address this significant issue of the Child’s future living arrangements and information sharing, keeping in mind the Society’s ultimate decision-making responsibility as to determining risk and the need for protection of the Child. In effect, the Summary is deficient in that it fails to address reasons or explanations or next steps on a number of the significant issues addressed by the Applicant at the ICRP.

DECISION

51The Board finds that on the issues listed below, the Applicant has not been heard, and that the Applicant has not been given reasons for the various decisions made by the Society through the ICRP that have had a significant impact on her related to these issues.

52The Board finds that the ICRP process followed by the Society did not comply with the statutory requirements, notably in the delay in notifying of eligibility and in holding the ICRP, the failure of the ICRP Summary to demonstrate that the Applicant was heard fully, and the failure of the ICRP to provide reasons for its decisions and to outline next steps as required.

53The Board orders the Society to reconvene its ICRP panel, so that the panel members can review what they heard from the Applicant, both in written form and what was presented at the ICRP meeting, and in order to comply with the Act by having the ICRP prepare a proper summary and reasons in accordance with the standard required of 68.1 (4) 5 with regard to the following issues of the Applicant, namely:

· How the Society handled matters related to when the Applicant’s ex-partner was arrested.

· The Society’s refusing the Applicant

♦ information regarding her daughter’s living arrangements, and

♦ any meaningful role in planning plan regarding her daughter’s future.

· The Society’s failure to listen to the Applicant and act upon her concerns regarding her daughter’s whereabouts and safety.

· The issue of the Applicant’s concerns about parental alienation.

CONFIDENTIALITY ORDER

54Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.

Gail Gonda
Presiding Member

Mary Wong
Panel Member

John F. Spekkens
Panel Member