M.F. v. Children’s Aid Society of Toronto, 2012 CFSRB 41

CHILD AND FAMILY SERVICES REVIEW BOARD

M.F.

v.

CHILDREN’S AID SOCIETY OF TORONTO

REASONS FOR DECISION

Date: October 9, 2012

Citation: 2012 CFSRB 41

Indexed as: M.F. v. Children’s Aid Society of Toronto

(CFSA s.68)

INTRODUCTION

1This is an application by M.F. (the “Applicant”) filed with the Child and Family Services Review Board (the “Board”) on May 18, 2012, pursuant to section 68(5) of the Child and Family Services Act (the “Act”), regarding the internal complaints process followed by the Children’s Aid Society of Toronto (the “Society”).

2The Applicant wrote a letter of complaint to the Society, dated March [ ], 2012. An Internal Complaint Review Panel (“ICRP”) was convened and a meeting took place on March [ ], 2012. The Society sent correspondence (the “Summary”) dated April [ ], 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 March [ ], 2012, 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 September 6, 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 followed the complaints review process as set out in the legislation, with the exception of its acknowledgement that the written summary of the ICRP meeting was sent to the Applicant three days past the fourteen day timeline, due to administrative inadvertence. The Board also finds that in regard to concerns about the failure to consider additional information (one out of three 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 and her ex-husband separated in September 2010 and cohabited until April 2011 when the ex-husband moved out of the home.

8In March 2011 the Applicant contacted the Society expressing concerns about her ex-husband’s sexual behaviour directed toward her children: a son, born March [ ], 2004 and a daughter, born October [ ], 2005.

9The Society advised the Applicant to go to the Police. At the Police station, in the presence of the Society intake worker, the Applicant showed a video of her ex-husband and daughter, taken by her son. The Society opened a file and began an investigation. The Society reached a verification decision in which the risk of sexual harm to the children was verified. The Society told the ex-husband to leave the home although he returned frequently during March, April and May of 2011.

10The ex-husband agreed with the Society’s request for supervised visits with the children. He was supervised firstly by the Applicant, then his mother, and then his older daughters from a previous marriage.

11The Applicant became concerned about the Society’s file during the transfer of the case to an ongoing family service worker. The event viewed in the video at the Police station was described, according to the Applicant, benignly as a game of airplane. This description was completely different, the Applicant stated, from what was shown in the video. The Applicant asked the intake worker to view the video again but she refused to do so. Later, in response to her repeated requests, the intake worker and the family service worker viewed the video again, and argued with her about its import. The intake worker subsequently stated that she did not recall viewing the video a second time. The Applicant later became aware that the Society’s file had not been changed.

12In May 2011 [the Doctor] began a Custody and Access Assessment, one not initiated by the Society. During this assessment, the Society’s intake report, but not the file, was made available to him. The only information provided to him regarding the video referred to a game of airplane.

13In the summer of 2011 the Society requested that the Applicant’s ex-husband see a therapist, [ ], to discuss sexual boundaries. According to the Applicant, the therapist was not provided with a proper description of the information shared at intake or in the video.

14The Applicant was informed in an e-mail from the family service worker, on August [ ], 2011, that the restrictions regarding supervised access for her ex-husband had been removed, in consultation with [the Doctor] and [the Therapist]. A week later she received a further e-mail saying, “I assume you are okay with the decision”. The Applicant responded by e-mail saying, “Absolutely not”.

15When the Applicant was getting ready to move from her house in September 2011, she found Polaroid photos of her step-daughters which she considered to be disturbing. She tried to provide these to the Society but the family service worker did not want to see them, and told her to give the photos to her lawyer. The Applicant stated that there was no mention of this concern in the file.

16The Applicant was of the view that the intake worker’s failure to appropriately describe the video, her reluctance to view the Polaroid photos, and further to communicate this information to [the Doctor] and [the Therapist], contributed to the Society’s decision made, at that time, to lift supervised access for the children.

17The Applicant stated that she consistently called the Society trying to share information the children were providing about visits with their father, and letters from the ex-husband’s first wife expressing her concerns, and was told that they could not use “stuff from before”. She also complained that it was difficult to reach her worker and that she did not receive responses to her e-mails.

18She continued to complain because she was concerned that evidence was being withheld from the file, and eventually complained to the Society’s Internal Complaints Review Panel. The Applicant submitted her letter of complaint to the Society on March [ ], 2012, and re-iterated these complaints in her Application to the Board, dated May 18, 2012.

19The Applicant applied to the Board for a review of her complaint, and the issues were set out in the Pre-hearing report of June 27, 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:

1. the inaccurate description of the video involving the Applicant’s daughter and ex-husband in the Society’s reports;

2. the decision to reference the video only in the intake investigation recording and not include it in the file;

3. the Society’s failure to consider additional evidence of concerning behaviour by the ex-husband which included Polaroid pictures the Applicant found in her ex-husband’s belongings.

ANALYSIS

20When 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.

21Under 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 [ ], 2012 (the “Summary”).

22The 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?

23The 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.

24Under s. 3 of the Regulation, the Society is required to determine whether a complaint is eligible for review, within seven days of receiving the complaint. If eligible, the Society is required to notify the complainant in writing and establish an ICRP.

25Section 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.

26The Applicant’s request for an ICRP dated March [ ], 2012 was acknowledged on March [ ], 2012 (3 days later). The ICRP meeting was preceded by a meeting on March [ ], 2012, (on consent) held between the Applicant and the service team and Branch Director, in an attempt to resolve the Applicant’s concerns and complaints about the service she and her children received from the Society. The Applicant was not satisfied by the outcome of the meeting and advised that she would be proceeding with her complaint. However, a number of agreements were reached during that meeting. These were confirmed in a letter from the Branch Director, dated March [ ], 2011, outlining the discussion and agreements reached in the meeting.

27The ICRP was held on March [ ], 2012, a date agreeable to the Applicant. A letter dated April [ ], 2012 summarizing the ICRP was provided to the Applicant with the acknowledgement that the letter was issued three days past the fourteen day time line, due to administrative inadvertence.

28The Board finds that the Society did comply with the requirements of the Regulation regarding notification of eligibility and the setting of a date for the ICRP meeting. The Society met the requisite time lines and took the required steps. Although there was not technical compliance with the timeline for providing the summary, the Society acknowledged their error and there is no consequence of the short delay. Thus, no order from the Board is required.

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

29The 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.

30The 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;

31As 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.

32To 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.

33The 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.

34The 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 one of her three complaints. The Board’s reasons are outlined in the following paragraphs.

Issue 1: The inaccurate description of the video involving the Applicant’s daughter and ex-husband in the Society’s reports

35At the Hearing the Applicant testified that she told the ICRP that she had met with the intake worker and the family service worker to express her concerns about the report of the video in the Society file. She told the ICRP that the intake worker not only had neglected to include the video in the file but had recorded it falsely, and this was the information given to [the Doctor] and [the Therapist]. The family service worker further neglected to record accurately the contents of the video in the file. The Applicant continued to complain regarding the file.

36She was concerned that in spite of her repeated requests, no one reviewed the video in a timely manner and the Society did not offer to give corrected information to two decision makers. The Society’s negligence not only ensured that the children were not protected but that people making decisions outside the Society were not given the opportunity to act in the children’s best interests.

37The Applicant stated that at the ICRP she was not told why the evidence was ignored when she tried to fix it. She felt the matter was swept under the rug; her children were put at risk because of a deficient file. She was concerned that at the ICRP no one explained why the Society would not review her file or offer any solution or apology. She asked why the Society did not acknowledge its mistake or the consequences, explain why this had happened, and say what it was doing about it.

38She submitted that the Society thought its decision, at the ICRP, to allow her to add her views to the file, should satisfy her, but this was one year later after the restrictions regarding supervised visits by the father had been lifted. The untrue inadequate information had already been given out. She suggested that adding information to a file that the Society was intending to close was not sufficient.

39The Applicant acknowledged that at the ICRP the Society did agree to change the wording of the letter written by [ ], Branch Director, dated March [ ], 2012 which summarized the March [ ], 2012 meeting. The words “no harm done” were removed; the Applicant stated that she was appreciative of that.

40The Applicant stated that she felt unheard at the ICRP because no one took responsibility for the Society’s actions, no one explained why they had happened, or offered to rectify the situation.

41The Applicant testified that she was looking for answers. She had no expectation that the decision regarding access would be overturned. She was of the view that all information should be available in the file, should she need to go back to Court regarding further custody issues.

42[ ], Manager of Client Services testified, on behalf of the Society, that at the ICRP the Applicant was told that there had been much discussion about the video with the intake and family services teams. The video had been assessed during intake, by the Police and in ongoing services. However, the intake worker, the family services worker, and the family services’ supervisor did not agree with the Applicant’s assertion that the video was grossly misrepresented in the file. While the description of the video was not to the Applicant’s liking, the viewing and assessment of the video by the Society determined that there was nothing in the video that was discerned as sexual abuse, by criminal or child welfare criteria.

43The Board finds that the ICRP did hear the Applicant’s service concerns regarding the inaccurate description in the Society’s reports of the video involving the Applicant’s daughter and ex-husband.

44The Board notes that, following discussions with the Applicant, the Society agreed that the service team would draft a written description of the video and review its contents with the Applicant to ensure that she agreed with the description. This revised description would then be placed in the case file. Further, the Society agreed to obtain a copy of the notes from the Toronto Police Service with respect to the joint investigation during which the video was reviewed and add that to the file. The Board observes that the Society‘s letter summarizing the ICRP notes that [ ], the intake worker, stated that although she did not recall viewing the video a second time, and did not recall denying that she saw it, she did acknowledge that referring to the video as “a game” was in poor taste. [The Intake Worker] acknowledged that her wording did not fully describe the video in her report.

45The Board finds that the ICRP did provide the Applicant with reasons for decisions that affect her interests regarding the video and its implications for her children’s best interests.

46The Society’s ICRP Summary explained that it fully considered the video in its verification decision. It noted that the verification decision was made in the context of the CFSA and Provincial Standards, and in accordance with the Eligibility Spectrum provided by the Ministry. The Society pointed out that the risk to the children was noted.

47The Board acknowledges that the Applicant was not satisfied with the reasons provided by the Society.

Issue 2: The decision to reference the video only in the intake investigation recording and not include it in the file

48The Applicant complained that the actual video had not been included in the file. She was given the opportunity to express this concern at the ICRP.

49The Society submitted that at the ICRP it was explained to the Applicant that it was not current practice to retain actual videos in its files because of concerns regarding possible loss. The Society explained that it did not have appropriate technology to download videos into its electronic file at this time. It noted that the investigative summary, including the description of the video, is a part of the written file.

50The Board finds that at the ICRP the Society did hear the Applicant’s concerns and did provide her with an explanation related to her concerns regarding the inclusion of the video in the intake investigation recording only and not in the file.

Issue 3: The Society’s failure to consider additional evidence of concerning behaviour by the ex-husband which included disturbing Polaroid pictures the Applicant found in her ex-husband’s belongings

51At the Hearing the Applicant submitted that she told the ICRP that she had tried to provide additional evidence of concerning behaviour by her ex-husband in the form of Polaroid photos taken of the Applicant’s step daughters several years earlier. The family service worker refused to view the photos, and advised the Applicant to give them to her lawyer. The Applicant repeatedly asked Society workers to view the pictures but they would not do so. No communication was provided to her regarding this matter. The ICRP was made aware of the above information.

52The Applicant further testified that during the ICRP process she was told that the photos had been viewed by Society workers but she was not provided with reasons for the Society’s delay in seeing them nor with reasons for its failure to include them in its assessment. She still does not know if the photos are in the file.

53[The Manager of Client Services], on behalf of the Society, submitted that the family services worker did acknowledge at the ICRP that she had been slow to respond to the issue of additional evidence. The family services worker told the ICRP that she had not been sure what to do with the request, given that the subjects in the photos were now adults. The pictures were later reviewed by the family services supervisor and were considered in the clinical context of the case. The service team reviewed them in its overall assessment with regard to the protection of the children. However, there was a discrepancy between the Applicant’s and the Society’s views of the photos.

54At the Hearing, the Applicant responded that the Society’s assertion at the ICRP that the photos were considered in its assessment of the case is erroneous, as the assessment was conducted long before the photos were reviewed.

55The Board finds that the Society at the ICRP did not fully address the Applicant’s concern that the Society failed to consider additional evidence of concerning behaviour by her ex-husband which included disturbing Polaroid pictures.

56The Board finds that although there was some discussion of the matter at the ICRP, the Summary, dated April [ ], 2012, is deficient in that it does not mention or address the Applicant’s concerns regarding this matter, including the chronology of events, nor does it provide reasons for the Society’s response to those concerns.

DECISION

57The Board finds that on the issue of concerns about not considering additional information, the Applicant has not been heard and the Applicant has not been given reasons for the decision made by the Society through the ICRP.

58The Board orders the Society’s ICRP to reconvene and to consider the information provided by the Applicant about the Society’s failure to consider additional information and to provide a letter to the Applicant, within fourteen days following the receipt of this Decision, fully addressing her concern that the Society failed to consider additional evidence of concerning behaviour by her ex-husband which included disturbing Polaroid pictures, and providing reasons for its response to those concerns, including next steps.

CONFIDENTIALITY ORDER

59Parties 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.