G.S. v. Children’s Aid Society of London and Middlesex, 2013 CFSRB 01

CHILD AND FAMILY SERVICES REVIEW BOARD

G.S.

v.

CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX

REASONS FOR DECISION

Date: January 14, 2013

Citation: 2013 CFSRB 01

Indexed as: G.S. v. Children’s Aid Society of London and Middlesex (CFSA s.68)

INTRODUCTION

1The Applicant filed an application with the Child and Family Services Review Board (the “Board”) pursuant to subsection 68.1(4) 4 and 5 of the Child and Family Services Act , R.S.O. 1990, c.C.11, as amended (the “Act”) against the Children’s Aid Society of London and Middlesex on September 10, 2012.

2The Applicant complained under s.68.1 (4) 4 and 5 of the Act and alleged that the Society had not heard her service concerns or heard her when decisions were made and had not provided her with reasons for decisions that affected her interests regarding the worker [ ] who had been her worker and who was also assigned to be her daughter’s worker; additionally she complained about:

a. A request for help with grandchildren she was caring for;

b. Conflict of interest;

c. Breach of confidentiality;

d. Unprofessionalism

e. Failure to respond to concerns about the younger child’s safety and lying about awareness.

3The Applicant’ also complained under s.68.1(4)2 and 3 of the Act that the Society failed to:

f. Respond to the complaint within the required timelines, and

g. Failed to comply with the complaint review procedures.

4The Board must decide whether or not the Applicant’s concerns were heard by the Society, whether or not the Society gave the Applicant reasons for its decisions and whether the Society complied with the complaint review procedures as set out in the Act. A pre- hearing conference for the application was held on October 9, 2012 and the hearing on the merits was heard on November, 26, 2012.

DECISION

5For the reasons set out below the Board finds that the Society did not hear the Applicant’s concerns as required by section 2(2) a of the Act and it did not provide her with reasons for the decisions made in response to those concerns as required by section 68.1(4)5 of the Act in regards to its failure to respond to her concerns about the younger child’s safety. The Board finds that the Society did comply with the Act with regards to the Applicant’s request for help with her granddaughter J [the granddaughter].

6The Board did not make findings with regards to the Society’s conflict of interest, breach of confidentially or unprofessionalism as no evidence was presented by the Applicant to substantiate these complaints.

7The Board further determined that sections 68.1(4) 2 and 3 of the Act was breached as the Society failed to comply with the complaint procedure as set out in the Act.

FACTS

Concerns about treatment of [the granddaughter]

8The Applicant is the grandmother of two girls J and H [the granddaughters]. She raised J since infancy. H came to live with them in 2009. J was physically aggressive toward H her younger sister who she did not want to live in the home. J’s pediatrician had diagnosed her with ADHD and aggressive behaviours. The Applicant first requested the Society’s assistance to address her concerns in November, 2010. Her worker, [ ], advised the Applicant to focus on J’s diet. Shortly after the Applicant’s request, J punched H shortly after H had had dental surgery which resulted in injury to H. The Applicant phoned the Society on November [ ], 2010 to inform them that she could no longer manage J’s behavior and consequently J was apprehended into the care of the Society and placed in a receiving group home. In June 2011 she was placed at the [a facility] for two months.

9The Applicant testified that J did not receive a psychological evaluation or counseling while in the Society’s care. The child was given medication, however, it had to be discontinued after four days because of the negative side effects of anxiety and aggression and the child’s diagnosis was not changed.

10The Society’s position was that J was apprehended because she had been abandoned by the Applicant. In the view of the Society, the receiving group home was designed to provide evaluation of J’s needs and long term planning to meet those needs. The Society tried to arrange counselling for J while in the receiving group home, however, there were waiting lists for community services. Ultimately J was placed at [a facility] for the purposes of a psychological and psychiatric assessment. [The facility] is a children’s mental health centre with the psychological and psychiatric services required to conduct an assessment of J. The Society explained that it did not rely upon the recommendations of J’s pediatrician since he is not a psychologist or a psychiatrist rather the child’s medical team recommended community referrals which were implemented by the child’s social worker.

Role of [the Worker]

11The Applicant’s daughter [ ], [the “mother”] the mother of J and H, was also involved with the Society. During 2010 [the Worker] was also assigned as her worker. The Applicant believes [the Worker] behaved unprofessionally by being [the mother’s] worker and this constituted a conflict of interest. Furthermore, the Applicant believes there is information to suggest [the Worker] breached confidentiality.

12[The Worker] testified that she first became involved with the Applicant on November [ ], 2009. Originally she had been assigned both the files of the Applicant and her daughter [the mother]. However, she recognized that there was conflict between the mother and the daughter and she requested the Applicant’s file be transferred to another worker. This occurred in February 2010 and [the Worker’s] access to the Applicant’s file was restricted and the file was sealed. [The Worker] agreed she continued to have information about the Applicant in the normal course of her contact with [the mother] who was in contact with her mother. She also agreed she discussed the Applicant and her granddaughters with Society workers in the line of her duties.

2011 Complaint

13The Applicant complained repeatedly to the Society regarding her concerns about the request for help with J and [the Worker’s] conduct. She made a written complaint about these matters in 2011 and a formal meeting was held to hear these concerns shortly after she sent the letter. The meeting was attended by the Applicant, and Society personnel. After the meeting, the Applicant received a written summary, a copy of which was not entered into evidence. The Applicant did not provide sufficient details to determine whether this was a formal Internal Complaint Review Procedure (“ICRP”) meeting nor did she divulge the issues which were under discussion, the explanations given to her during the meeting or the contents of the Society’s follow up correspondence. The Applicant informed the Board that at that time she did not want to take any further action with regards to her complaints but the Society did nothing after that meeting.

Concerns about Safety of H and other grandchildren

14As a condition of returning J to the Applicant’s home, the Society requested that H be returned to [the mother’s] care. On May [ ], 2012, [the mother] [ ] came to the Applicant’s home to attend the Firecracker Night BBQ with five of her children including H. During the BBQ, [the mother] punched H in the head and twisted the arm of another grandchild. This incident led the Applicant to become concerned about [the mother’s] physical treatment of H as well as the other child. The Applicant called her worker, [another Worker], and his supervisor, [ ], and informed them of the incident. Society Supervisor [ ] assured the Applicant that [the Worker] “would look into” the incident. The Applicant also left a voicemail for [the Worker] who was on vacation leave because [the mother] had asked her if she would take the other grandchild involved in the incident into her care.

15The Applicant believed that [the mother’s] home environment was unsafe for H. On July [ ], 2012 the Applicant sought and obtained legal custody of H to ensure her safety.

16The Applicant testified that the Society took no action in response to her report of the incident so she reported the matter to the [Police] and an assault investigation was launched in July 2012.

17The Society agreed that the Applicant had reported the assault to Society personnel. The Society took the position that the incident was investigated in accordance with the Society’s policy which involves consultation with a supervisor and investigation by the Society’s forensic team comprised of specialized social workers who are trained to work with the police. [The Worker] was not a member of the team working with the police and she testified that she had no information about the incident. The Society’s position was that the police would decide the outcome of the complaint and lay charges if appropriate.

August 2012 Complaint

18The Applicant wrote to the Board on August 21, 2012 to complain about the Society’s response to her request for help with her grandchildren and concerns about [the Worker’s] conflict of interest; breach of confidentiality; unprofessionalism; failure to respond to concerns about H’s safety and lying about her awareness of this concern.

The Society responded to the Applicant’s complaint in writing on August [ ], 2012. The Society’s position was that it could not take any further action unless the Applicant consented to the release of the complaint to [the mother] “in order to consent to a proper degree of openness in this process and to permit [the mother] to consent to release the outcome to you via letter”. The Applicant did not consent to release her complaint to [the mother]. The Society also offered to facilitate a meeting between the Applicant and [the mother] “to attempt to resolve your present concerns”.

19The Applicant takes the position that her concerns were about how the Society responded to her complaints and its behaviour in response to her concerns. The issue was not about her relationship with her daughter. The Applicant also alleges that, contrary to s.68.1 (4) 4 and 5 of the Act , the Society did not hear her concerns or hear her when decisions were made which affected her interests and did not provide her with reasons for decisions that affected her interests regarding the worker and her grandchildren.

20The Applicant’ also complained that, contrary to s.68.1(4)2 and 3 of the Act, the Society failed to respond to her August 2012 complaint within the required timelines and failed to comply with the complaint review procedures.

The Society’s Position

21The Society did not contest the Applicant’s right as a parent to request services or her right to reasons for decisions which affect her interest. The Society’s position was that all of the Applicant’s concerns were heard and all of its decisions had been explained to her except where the Applicant’s consent to release information to her daughter was required and the Applicant was not willing to provide the requested consent.

ANALYSIS

22The Board must decide whether or not the Applicant’s concerns were heard by the Society, whether or not the Society gave the Applicant reasons for its decisions and whether the Society complied with the complaint review procedures as set out in the Act.

23The substantive and procedural issues raised in this Application are inter-related and will be dealt with in these reasons.

24The relevant provisions of the Act are as follows:

Complaint to society

68.(1) A person may make a complaint to a society relating to a service sought or received by that person from the society in accordance with the regulations.

Complaint review procedure

(2) Where a society receives a complaint under subsection (1), it shall deal with the complaint in accordance with the complaint review procedure established by regulation, subject to subsection 68.1 (2).

Matters for Board review

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

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68 (1) as required under subsection 68 (2).

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

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.

6. Such other matters as may be prescribed.

Review by Board

(5) Upon receipt of a complaint under this section, the Board shall conduct a review of the matter.

Board decision

(7) After reviewing the complaint, the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint; or

(f) make such other order as may be prescribed.

Duties of Service Providers

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;

25The relevant portions of Ontario Regulation 494/06 provide that s. 68(1) complaints to a Society proceed as follows.

1. In this Regulation,

“ICRP” means an Internal Complaints Review Panel established under subsection 5 (1).

Complaint in writing

2. A complaint to a society under subsection 68 (1) of the Act must be made in writing.

Eligibility for review

3. Within seven days after receiving a complaint, the society shall determine whether the complaint is eligible for review under section 68 of the Act.

Notice if eligible for review

5. (1) If the complaint is eligible for review, the society shall notify the complainant in writing and shall establish an Internal Complaints Review Panel.

(2) The notice shall provide the complainant with a date and time for meeting with the ICRP.

Scheduling of meeting

7. (1) The meeting between the complainant and the ICRP shall be scheduled at a time that is mutually convenient for the complainant and the members of the ICRP and shall 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.

(2) The ICRP shall make reasonable efforts to accommodate a request by a complainant to schedule the meeting at a later time.

(3) The meeting between the complainant and the ICRP shall take place in person.

26In P.O. v. Family and Children’s Services Niagara. 2012 CFSRB 33 at paras. 13-14 the Board described the purpose of s.68.1(4) and (5) as follows:

The obligations under s. 68.1 (4) 4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to, or accept decisions.

To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly

27To meet the statutory obligation, reasons must be timely and detailed and the Applicant must be given sufficient information to understand what factors were considered in making a decision and why.

Society’s failure to provide for her granddaughters and her concerns about the conduct of [the Worker] relating to working with the Applicant’s daughter.

28The Board concludes that the Society did hear her concerns about providing help for J when requested in November 2010, given that it apprehended the child a week after it became involved with the Applicant and placed J in a placement to evaluate and meet her needs. After this placement J was moved to a children’s mental health centre for mental health assessment and treatment and community services referral.

29The Board concludes that the Society did hear the concerns of the Applicant regarding conflict of interest with regards to [the Worker] working with both her daughter and herself as a new worker was assigned to the Applicant and her files were sealed to [the Worker]. The Board could not determine from the evidence presented whether [the Worker’s] conduct had been unprofessional or whether she had breached confidentiality as these issues were interrelated with her daughter who was also a client of the Society and due to privacy concerns the parties could not discuss matters relating to the Applicant’s daughter.

Failure to respond to concerns about H’s safety and a Society employee lying about awareness of the incident.

30The Applicant’s complaint regarding the alleged assault on H is not mentioned by the Society in its August [ ], 2012 written response.

31The Society did not provide any evidence regarding the details of the investigation that it undertook in response to the Applicant’s May 2012 allegations. Rather, the Society’s evidence suggests the incident was investigated in conjunction with the police who only became involved as a result of the Applicant contacting the police in July 2012, who in turn conducted a joint investigation with the Society. [The Worker] testified that she had no information regarding the incident although the Applicant testified that she left a voicemail for her.

32The Board concludes that the Society did not hear the Applicant and did not provide opportunities for her to have meaningful discussions and input with regards to her concerns related to the May 2012 incident. Nor did the Society provide the Applicant with an explanation of the actions that it took in response to the allegations and the outcome including safety planning for the child H. The worker stated that she did not have any information on the incident as she was not a part of the investigating team. The Board concludes that the Society did not hear the Applicant’s concerns regarding H’s safety. The Society did not deny knowledge of the incident in May, 2012 as the Applicant had reported it to her worker and his supervisor as well as, she had left a voicemail for [the Worker] who did not dispute that she received the voicemail. The Board concludes that [the Worker] was aware of the incident however she may not have been privy to the investigation details since she was not a member of that team.

33The Board concludes that the written response from the Society to the Applicant dated August [ ], 2012 did not meet its obligations regarding the complaint review procedures as set out in the Act and the Applicant’s right to be heard and to be given reasons for the Society’s actions. The Society’s response of “please rest assured that your concerns have been taken seriously although you will not receive any further feedback” does not address any of the Applicant’s concerns or provide her with reasons for its actions. The Act requires that eligibility for review be determined within seven days of the Society receiving a written complaint and if the complaint is deemed eligible for review, the Society shall provide the Applicant with a time and date for meeting with the ICRP committee. The Society’s response does not advise the Applicant if her complaint is eligible for review or not and although it offers to facilitate a meeting between the Applicant and her daughter it does not offer to engage the Society’s internal complaint review process.

ORDER

34The Board orders the Society to provide detailed written explanation to the Applicant explaining the following:

a. the actions that the Society took with regard to the Applicant’s allegation of breach of confidentiality and un-professionalism, resulting from [the Worker] being assigned to the Applicant’s case and her daughter’s case and the reasons for those actions;

b. the actions that it took in response to the allegations made by the Applicant regarding the abuse of H by her mother including any safety plan for the child who was in her care and the reasons for its actions.

c. and engage the Society’s complaint review process to inform the Applicant of her eligibility or not for an ICRP meeting with regards to her August 2012 complaint letter as required under the act.

35The Board also orders that the Society meet its obligations under the Act by

either meeting with Applicant in person or over the phone to discuss the written reasons provided, within 30 days of the date of this order.

Confidentiality Order

36The hearing was conducted in private and was not open to the public. Parties 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 and the Board must be used only for the purposes of the hearing of this application.