K.D. v. Family and Children’s Services of Frontenac, Lennox and Addington, 2014 CFSRB 61

Child and Family Services Review Board

K.D.

v.

Family and Children’s Services of Frontenac, Lennox and Addington

REASONS FOR DECISION

Date: October 28, 2014

Citation: 2014 CFSRB 61

Indexed as: K.D. v. Family and Children’s Services of Frontenac, Lennox and Addington (CFSA s.68)

INTRODUCTION

1K. D., the Applicant (the “Applicant”), filed an Application pursuant to section 68(5) of the Child and Family Services Act, R.S.O., 1990, c.C.11, as amended, (the “Act”) on July 22, 2014. The Applicant was dissatisfied with the Internal Complaints Review Panel (the “ICRP”) process conducted by the Family and Children’s Services of Frontenac, Lennox and Addington (the “Society”) on March 7, 2014 and its outcome. The Board held a pre-hearing on September 5, 2014 and further clarified on consent of the parties that the application was eligible to be heard under sections 68.1(4).4 and .5 of the Act.

2The Board requested that the Applicant provide a list of inaccuracies that he presented at the ICRP. On September 18, 2014, he submitted a number of disclosure documents including several affidavits prepared by Society witnesses to the proceedings before the Family Court of Justice. At the hearing, the Board further clarified the issues to be heard as set out in other sections of this decision below.

3A hearing was held on September 25, 2014.

4The Board finds in favour of the Applicant regarding the failure of the ICRP to hear or answer the Applicant’s concerns.

5The Board dismisses the Applicant’s complaint regarding the alleged statement of the worker that the Applicant undermined the role of caregivers.

6The Board’s reasons for this decision and related orders follow.

BACKGROUND

7The Applicant is the father of a nine-year-old boy (the “Child”) who is the subject of his complaint. On October 17, 2013, the Child was made a Crown Ward with access to the Applicant at the discretion of the Society and initially supervised by the Society.

8The Applicant submitted a written complaint to the Society on February 3, 2014.

The Applicant spoke with the Society’s executive director on February 10, 2014 and he was provided with a copy of the Society’s Complaints Brochure on the same date. The Society informed the Applicant that if his concerns had not been adequately addressed at a previous meeting, the Society would proceed to an ICRP. The executive director of the Society prepared a letter dated February 24, 2014 summarizing the Applicant’s concerns and inviting him to attend an ICRP meeting. The Society scheduled the ICRP meeting to be held on March 7, 2014 to deal with the Applicant’s issues. The Applicant was provided with a written summary of the ICRP dated March 20, 2014.

9The Applicant was not satisfied with the Society’s ICRP process or its outcome.

ANALYSIS

THE ICRP

10The Board has authority to determine if the Society complied with the regulations regarding the ICRP process, whether the Applicant was heard when he raised concerns with the Society during the ICRP process and whether he was given reasons for decisions made in the course of the ICRP process.

11The Board’s authority and the Society’s obligations relating to the ICRP process are found in the following sections of the Act:

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.

68(5) If a complaint relates to one of the following matters, the complainant may apply to the Board in accordance with the regulations for a review of the decision made by the society upon completion of the review procedure:

1. An alleged inaccuracy in the society’s files or records regarding the complainant,

2. A matter described in subsection 68.1(4);

3. Any other prescribed matter.

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

s. 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.

12In 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) and addressed s. 68.1(4).4 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.

13With respect to s. 68.1(4).5, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A parent must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

14The Society summarized the Applicant’s complaints in a letter dated February 24, 2014 that were to be the focus of the ICRP process. The Applicant agreed that the letter reflected his concerns and that they were the issues that were before the ICRP held on March 7, 2014.

15The issues were categorized into three categories as follows:

1. Respectful and Proper Process

a. Inaccurate information

b. Failure to inform the Applicant at the time of the apprehension of his Child

c. Failure to involve the Applicant in discussions and process as was his right as a parent with joint custody

d. Affidavit incorrectly served – no 24 hour notice

e. Feeling lied to, threatened and manipulated

2. Access

a. Failure to comply with judge’s order regarding access

b. Access of the Applicant’s mother stopped without cause

c. Access between the Applicant’s daughter and the Child

d. Child’s right to information and input on access being denied

3. Ongoing Information Sharing

a. School reports and pictures not being forwarded.

16The Board had requested that the Applicant provide detailed information regarding what the inaccuracies were that were discussed with the ICRP. The Applicant submitted materials prior to the proceeding however these materials did not clearly outline what the inaccuracies were. However, during the course of the hearing the Applicant clarified that there were two inaccuracies that were discussed at the ICRP meeting, namely, that the Society had alleged that he had inappropriately shared financial information with the Child and that he had not followed through on the referral made for him to meet with a psychologist. As a result of these two allegations, the Applicant’s access to the Child was allegedly suspended.

17The Applicant’s spouse also confirmed the two inaccuracies discussed at the ICRP meeting since she attended the meeting with him as did his mother.

18The Applicant confirmed that all of the issues outlined in the letter of February 24, 2014 were discussed at the ICRP.

19The Society provided the Applicant with a written summary dated March 20, 2014 of the ICRP meeting held on March 7, 2014. The executive director of the Society chaired the ICRP meeting and signed the summary letter. This letter is the primary evidence the Board relied upon to assess whether the Society fulfilled its responsibilities under the Act to provide the Applicant with the opportunity to be heard at the ICRP and to provide him with reasons or explanations for any decisions taken by the Society regarding the issues raised.

20The first category that was the subject of the ICRP related to a number of issues under the heading: respect and proper process outlined above. The response provided in the summary is as follows:

Thank you for providing copies of your joint custody agreement. We have added that to your file. While there is significant evidence of communication between the Agency and yourself throughout the process, there are times when information could and should have been shared in a more respectful and timely manner. In particular you should have been informed of the [city] trip and asked to consent. This was an omission on our part and we apologize.

We do not believe that communication had any impact on the result of Crown Wardship.

This response did not include any details that clearly demonstrate that the Applicant was heard with regard to the five issues listed under category one as set out previously. It did not provide an account of any inaccuracies and explanations to the Applicant as to actions that might be taken with regard to them. The summary did not mention or explain the timing of informing the Applicant about the apprehension of the Child. The summary did not give an account of the Applicant’s position with regard to where the Child was to be placed following the apprehension and the involvement of the Applicant as his parent in this process. The summary made no mention of the Applicant’s concern about the timing of the serving of the affidavit, the impact it may have had on the Applicant and the reasons for the timing. And the summary did not reflect that it had heard the Applicant’s concerns regarding being lied to, threatened and manipulated since it did not provide any specific details in relation to these concerns.

21Category two of the issues outlined to be the subject of the ICRP focused on matters related to access. The first issue under this category related to the Applicant’s concern that the Society failed to comply with the judge’s orders regarding access. The ICRP summary states the following in relation to this issue:

In reviewing your access, we believe that the Agency is in full compliance with the Judge’s order of October 17, 2013. The Judge left the decision regarding access up to the Agency and was to be in [the Child’s] best interest. While you do not agree with the access being suspended, it was a decision that the Agency believed necessary.

22This statement fails to provide the Applicant with a written explanation of the reasons why it exercised its discretion in the manner that it did. Any explanation that is provided should include sufficient details described in a clear manner such as to allow an applicant to be led to the conclusions drawn by a society for the decision taken. It is not sufficient to state that something was done because the authority to do it existed as the statement made in the summary provided to the Applicant suggests.

23The second issue in this category related to the access of the Applicant’s mother being stopped without cause. The ICRP summary states the following in relation to this issue:

Access for you, your mother and possible future contact with [another child] is currently being reviewed and further information will be coming to you soon.

24This statement fails to provide the Applicant with a written explanation that relates to the issue raised by the Applicant. The Board recognizes that there may be confidentiality issues that prevent a society from full, detailed disclosure. However, there remains an expectation that sufficient information is provided to an applicant to allow him to be led to the conclusion drawn by a society that that explanation is concrete, detailed and complete. The statement in the summary is deficient in this regard. The Board concludes in this case that the summary does not reflect that the Applicant was heard or was given an explanation for the Society’s decision regarding this issue.

25The third issue in this category related to access between the Applicant’s daughter and the Child. The statement made in the ICRP summary in relation to issue #2 quoted earlier relates to this matter. That statement indicates that the ICRP considered the issue but does not reflect any concrete, detailed or complete account of the issue as perceived by the Applicant and responded to by the Society. There is no explanation of the reasons why access cannot occur at the time, the factors that need to be considered in determining when access can occur between the children, the likely timeframes involved in the decision-making regarding this matter, the Applicant’s role in this matter and who the Applicant can contact in relation to this matter. Although the Society makes it clear in their statement that the issue is one they are considering, the Applicant is not given any details regarding the parameters of its consideration.

26The final issue in this category relates to the Applicant’s concern that the Child’s right to information and input on access was being denied. The ICRP summary states the following in relation to this issue:

[The Child] was told that the access was put on hold by the Agency and he is aware that you still want to see him.

Again, the written explanation regarding the Society’s decisions on this issue is lacking in detail and is incomplete. It does not indicate to the Applicant what the Society’s position and practice is with respect to obtaining input from a child on the matter of access and how that input is weighed along with the input of others. It does not indicate the Society’s policies and practices that relate to a child’s rights to information and to be involved in decision-making that affect his interests. These gaps in its response indicate that the Society did not hear the Applicant on the issue since it does not speak specifically to his concern.

27The third category that was the subject of the ICRP related to ongoing information sharing and specifically the Child’s school reports and photos. The Society acknowledges in the ICRP summary that:

You should have been given pictures and school reports in a timely manner. I understand that the quality of the last picture sent was poor. A better picture will be sent out shortly.

28The Society did acknowledge in this statement that the Applicant had a right to the information sought but its response is lacking in detail. It is incomplete with regard to the basis for this right and details such as how often and when he is to receive this information, who is responsible to ensure that he receives the information, the process for obtaining the information and why he has not received the information in a timely fashion in the past. Such details should have been included in the Society’s response in order to meet the test set out earlier in this decision regarding adequacy of written reasons given.

29As mentioned previously in these reasons,

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.

30The ICRP process as revealed through an analysis of the issues to be heard at the ICRP and the summary letter does not meet the test set out in the preceding paragraph.

31The Board concludes that the Applicant was not heard or given reasons as required under sections 68.1(4).4 and .5 of the Act by the Society through its ICRP process as reflected in the written summary dated March 20, 2014.

OTHER COMPLAINTS

32At the pre-hearing held on September 5, 2014, the Board determined that the Applicant had brought a new complaint in his application that had not been the subject of the ICRP. This complaint related to comments made by a worker that the Applicant had set out in a statement attached to his application. The Society alleged that these allegations were matters that were before the Court and addressed by the Court at the time of the Crown Wardship proceeding and therefore the Board did not have the jurisdiction to hear this matter.

33At the hearing, the Board reviewed a summary of the submissions by the Applicant and the Applicant agreed that the comments made by the worker were the following:

1. The worker alleged that he had to “run for his life” because the Applicant was threatening him;

2. The worker alleged that the Applicant was incapable of engaging in activities of daily living without the assistance of an Adult Protection Support Worker (an “APSW”).

3. The worker alleged that the Applicant had discussed court matters with the Child;

4. The worker alleged that the Applicant had attempted to undermine the Child’s foster caregivers;

5. The worker had alleged that the Applicant had cancelled a meeting with the psychologist.

34The Board heard the Society’s argument regarding its jurisdiction to hear these matters and concluded that it did not have the jurisdiction to hear complaints 1 and 2 since a review of the reasons for the judgement made in relation to the Crown Wardship decision indicated that these two allegations regarding the Applicant were findings of fact in evidence before the Court. In addition, the judgment made relied upon these facts in making its ruling in relation to the Applicant’s custody of and access to the Child. The Applicant was represented by counsel and had the opportunity to make a case with regard to these allegations at that time. The Board did not hear these matters in accordance with section 68.1(8) of the Act which states the following:

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;

35The Board also did not hear issue 5 since it had been dealt with at the time of the ICRP and has considered it within the context of the ICRP and its decision and orders in relation to it and has addressed this matter under the review of the ICRP.

36The Board determined that it would hear from the Applicant regarding issues 3 and 4.

37The Applicant clarified that issue 3 had to do with him discussing financial matters with the Child and was discussed at the ICRP and for these reasons the Board has addressed this matter under the review of the ICRP.

38The remaining issue, issue 4, the Applicant surmised was the view of the Society as expressed by the worker as the result of the Applicant having raised concerns about the safety of the Child in the care of the foster parents. The Applicant had knowledge that the foster father drove the Child “doing donuts” in a parking lot and also knowledge of the foster father’s possession of a gun and questioned whether these were considered safe actions and behaviour. The Society’s position on cross-examination was that the Applicant had had the opportunity to raise these concerns through counsel regarding the safety of the Child in the care of the Society during the Crown Wardship proceedings and did not do so. Although this view was beside the point, the Applicant did not shed any further light on this issue. The Board did not hear any testimony from the Society on the issue.

39The Board did not hear evidence from the Applicant about the context for this issue and/or when he had raised this as an issue with the Society. The Applicant did not present any evidence upon which the Board could determine that the Society failed to hear him on the matter or failed to give him reasons for the alleged view that he was attempting to undermine the Child’s foster caregivers. The Board dismisses this complaint.

CONCLUSION

40The Board finds that the ICRP did not hear the concerns of the Applicant that were outlined in the letter dated February 24, 2014 and which were to be the subject of the March 7, 2014 ICRP meeting as evidenced by the written summary dated March 20, 2014. The Applicant’s testimony did not provide any additional insight into the ICRP process and the Board therefore relied primarily on the written summary to assess the Society’s ICRP process. The analysis of the summary in light of the issues to be heard clearly indicates that the process was deficient. In some instances, there was no mention of the issues identified in the summary, in others; there was a lack of detail, clarity and thoroughness in the response provided by the Society. In addition, the written summary did not reflect that the Society took into account the Applicant’s disability in framing its response.

41The Board believes that the Applicant clearly demonstrated that he did not have a complete understanding of the Society’s actions in light of his concerns after the Society’s ICRP process and the Society’s response did not succeed as a remedy to elucidate its actions. Therefore the Board makes the following decision and orders.

Board Decision

42Section 68(10) of the Act empowers the Board to make orders as follows:

Upon completing its review of a decision by a society in relation to a complaint, the Board may,

(b) in the case of a matter described in subsection 68.1(4), make any order described in subsection 68.1(7) as appropriate;

68.1(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.

ORDERS

43The following orders are given to the Society’s ICRP that was constituted to hear the Applicant and respond to his concerns. These orders are a remedy for the deficiencies identified in the ICRP’s written summary outlined in this decision:

1. That the ICRP provide a written explanation to the Applicant for the following within 30 days of the receipt of this decision:

i. What actions the Applicant may take to address the two inaccuracies identified;

ii. An explanation for the actions taken by the Society with regard to the timing of informing the Applicant about the apprehension of the Chid with reference to any policies, standards or legislation that informed its actions or reasons why its actions may not have been in compliance with any policies, standards or legislation;

iii. An explanation that reflects what the Applicant’s position was on options for the Child’s placement at the time of the apprehension, why the Society did not involve him in decision-making regarding placement decisions at the time, whose input the Society sought in making its decision on placement at the time of the apprehension of the Child, the factors the Society considered in making its decision on placement and why the Applicant’s home was not considered an appropriate placement at the time;

iv. A similar explanation as to 1(ii) for the timing of the affidavit including the possible impacts on the Applicant as expressed by him;

v. A statement that reflected that it heard the Applicant with regard to being lied to, threatened and manipulated;

vi. An explanation of why the Society exercised its discretion in the way that it did in regard to the Applicant’s access to the Child that includes clear, concrete and detailed reasons why it changed access and in what way this change was in the best interests of the Child;

vii. An explanation of why the Society did not permit the Applicant’s mother access to the Child that provides the factors that are considered in making such a decision and any limits on the Society’s capacity to share detailed information due to confidentiality including identification of any policies, practices, standards or legislation that effect such decisions.

viii. An explanation about why contact between the Applicant’s daughter and the Child could not take place at the time requested by the Applicant, the factors that need to be considered in determining when access can occur between the children, the likely timeframes in the decision-making regarding this matter, the Applicant’s role in this matter and who the Applicant can contact in relation to this matter;

ix. An explanation about the Society’s position and practices with respect to obtaining input from a child on the matter of access and how that input is weighed along with the input of others; the Society’s policies and practices that relate to a child’s rights to information and to be involved in decision-making that effect his interests; a statement that indicates that the Society complied with its standards, policies and practices in the case of the Applicant’s Child consistent with any confidentially requirements;

x. An explanation of the reasons for the Applicant’s right to information about the Child such as school reports and pictures and any other information that he is entitled to receive, how often and when he is entitled to receive information, who is responsible to ensure that he receives the information, the process for obtaining the information and why he had not received timely information in the past.

2. The Board orders that the explanations ordered in 1(ix) be written in simple, plain language to ensure that they are clear and remedy the lack of detail, thoroughness and clarity lacking in the written summary of March 20, 2014. The explanations provided should leave no gaps as to how and why the Society acted in the manner that it did in relation to the concerns of the Applicant and should ensure a full, detailed and complete understanding by the Applicant of the Society’s actions.

CONFIDENTIALITY ORDER

44Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings.