M.M. and I.C. v. Family and Children's Services of Frontenac, Lennox and Addington, 2015 CFSRB 23

CHILD AND FAMILY SERVICES REVIEW BOARD

M.M. and I.C. v. Family and Children's Services of Frontenac, Lennox and Addington

REASONS FOR DECISION

Date: May 28, 2015

Citation: 2015 CFSRB 23

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

INTRODUCTION

1This is a review of a decision of an ICRP [ ] by the Child and Family Services Review Board (“Board”) under s. 68 (5) of the Child and Family Services Act. The Applicants, grandparents went through the Society’s internal complaints review process but were not satisfied with the decision of the Internal Complaints Review Panel (“ICRP”) and commenced this review.

2The Board had to decide if the Society, through the ICRP process heard the Applicants and provided them with meaningful reasons for the ICRP decision. The Board also examined whether the Society complied with the legislated complaints process in terms of timing and participation of the Executive Director on the ICRP.

3The Board heard the matter via video technology on May 12, 2015, with the consent of the parties. The Board has determined that the Society met its obligations to the Applicants under the CFSA, with the exception of meeting the timelines. The Board dismisses the application except with respect to the timelines. The Board, however, makes no order with regard to the timelines. The Board provides direction on the role of the Executive Director but makes no order in this regard.

BACKGROUND

4The Applicants cared for their grandchildren under a kin agreement (from, February 12, 2014 to April 7, 2014) and then under a supervision order (from April 7, 2014 to October 6, 2014). They have grave concerns about the mental health of their daughter, the mother and about the fact that her partner, [ ] has been permitted near the children. They have consistently expressed these concerns to the Society.

5On September 8, 2014, the Applicants wrote a complaint letter to the Society asking for an ICRP. The Society responded on September 9, saying the concerns were being looked into by the Manager. On September 11, 2014, they spoke with the Manager about the complaint and the children were taken out of their home, at their request because they felt the Society should not be supporting the return of the children to the mother. On September 24, 2014 the Society wrote a letter summarizing the conversation of September 11. On September 29, 2014, the Applicants again wrote asking for an ICRP. On October 6, 2014 the court made a temporary order returning the children to the mother under Society supervision. On October 10, 2014 the Society met with the Applicants about their concerns. On October 27, 2014, the Applicants made their third written request for an ICRP. The Society acknowledged this request in writing on October 30, 2014 and responded on November 5, 2014 with a summary of the October 10, 2014 meeting.

6On November 13, 2014 the Executive Director had a conversation with the Applicants to discuss which issues would be eligible for review by the ICRP. The Applicants exchanged emails with the Executive Director and had some phone conversations with him. In a letter dated November 17, 2014, the Executive Director outlined the issues eligible for the ICRP. The ICRP occurred on November 21, 2014. The Executive Director was a member of the ICRP. On December 5, 2014, the ICRP issued its decision in writing.

7The Applicants were dissatisfied with the outcome of the ICRP and commenced their application to the Board on January 13, 2015.

ANALYSIS

JURISDICTION

8The Board heard a motion on jurisdiction on April 23, 2015. At the motion, the Society conceded jurisdiction after clarification of the issues, except regarding the Applicants’ complaint that the Society had allegedly manipulated court dates. The Board reserved its decision and later decided that this was an issue before the Court and that thus, the Board had no jurisdiction to hear that aspect of the complaint. Under section 68 (12) of the Act a Society cannot review a complaint if the subject of the complaint is before the court. Similarly, under s.68.1 (8):

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;

9The Applicants had attended court proceedings including part of a case management conference. The Court and not the Board controls the process before the Court including the setting of and concerns about court dates. The fact that the ICRP heard the Applicants’ concerns about this issue does not give the Board authority to deal with something that is in the exclusive purview of the Court.

MERITS

10The Board proceeded to a hearing on two matters that were before the ICRP and regarding compliance with the complaints process. The first question for the Board was whether the Society, through its ICRP process heard the Applicants and provided them with reasons regarding 2 concerns dealt with by the ICRP:

1. That the Society had not properly acted upon information provided by the Applicants and others with respect to the mother’s mental health and parenting capacity
2. That the Society had not properly assessed and acted upon information provided by the Applicants or mutually known by both the Applicants and the Society, with respect to the safety and proximity to the children of [the partner]

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. A matter described in subsection 68.1(4)

Section 68.1 (4) includes the following matters:

4. Allegations that the society has failed to comply with clause 2(2)(a):

[Under s.2 (2) (a) Service providers shall ensure:

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]

; and,

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

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.

13The “right to reasons” under the Act, means a right to a meaningful explanation about decisions that affect the applicant’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013, CFSRB 8, at para. 8, the Board held that:

With 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 second question for the Board was whether the Society followed the legislated complaints process.

15Ontario Regulation 496\06 applies to the ICRP process:

2. A complaint to a society under subsection 68 (1) of the Act must be made in writing. O. Reg. 494/06, s. 2.

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. O. Reg. 494/06, s. 3.

Notice if not eligible for review

4. If the complaint is not eligible for review, the society shall notify the complainant of its decision and the reasons for it in writing. O. Reg. 494/06, s. 4.

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. O. Reg. 494/06, s. 5 (1).

(2) The notice shall provide the complainant with a date and time for meeting with the ICRP. O. Reg. 494/06, s. 5 (2).

Members of ICRP

6. (1) The members of the ICRP shall be selected by the executive director of the society and shall include a senior manager from the society, other society staff as required and at least one person who is external to the society. O. Reg. 494/06, s. 6 (1).

(2) A person selected to be a member of the ICRP who is external to the society may be a member of the society’s board of directors. O. Reg. 494/06, s. 6 (2).

(3) No person selected as a member of the ICRP shall have had any direct involvement with the complaint being reviewed. O. Reg. 494/06, s. 6 (3).

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. O. Reg. 494/06, s. 7 (1).

(2) The ICRP shall make reasonable efforts to accommodate a request by a complainant to schedule the meeting at a later time. O. Reg. 494/06, s. 7 (2).

(3) The meeting between the complainant and the ICRP shall take place in person. O. Reg. 494/06, s. 7 (3).

Attendance at meeting

8. (1) Subject to subsection (2), the ICRP may determine who may attend the meeting. O. Reg. 494/06, s. 8 (1).

(2) The complainant, a representative of the complainant’s band or native community, where appropriate, and one other person of the complainant’s choosing may attend the ICRP meeting. O. Reg. 494/06, s. 8 (2).

Summary of results of meeting

9. Within 14 days after the meeting, the ICRP shall send a written 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. O. Reg. 494/06, s. 9.

Resolution of complaint

10. If at any point during a society’s complaint review procedure the complaint is resolved to the satisfaction of the complainant, the society shall confirm the resolution in writing to the complainant. O. Reg. 494/06, s. 10.

16The Board had insufficient evidence to conclude that the Executive Director had direct involvement with the complaint prior to the ICRP. However, the regulation sets out a specific role for the Executive Director and based on that role, the Executive Director should not be on an ICRP. The Board finds that there was no prejudice to the Applicants because of the participation of the Executive Director. The Society now has the Board’s interpretation of the legislation (below) on this issue for future reference. The Society has conceded that it did not follow the legislated timelines. The Board finds, however that this did not impact on the ICRP and makes no order in this regard.

Time Line

17The Applicants were legal parents (as a result of the court order) [at] the time they made their written complaint. The Society was required to deal with eligibility for an ICRP within 7 days: it did not do this formally for approximately 70 days. Had the Society met its timelines, the Applicants would have still been legal parents at the ICRP since the Society would have had to have held the ICRP by at least September 28, 2014. This could have had an impact on the ICRP. The Society’s witness who was a Society Supervisor and member of the ICRP testified that the ICRP treated the Applicants as grandparents at the ICRP (and not parents). However, the Society submitted that the level of participation and information provided was consistent with what would have been provided to parents and thus, there was no prejudice arising from the delay in terms of the Applicants being heard and provided with reasons. In the circumstances and on the evidence, the Board agrees.

18However, the Board does not condone the non-compliance with the statutory time lines in favour of a more informal process. The Society was not precluded from having informal meetings but should have determined eligibility and set up the ICRP in the time lines required. The Board will address this issue further in the context of being heard and the provision of reasons, below.

Were the Applicants’ Heard?

19The Applicants conceded that they were heard in the sense that they felt listened to at both the informal meeting, during conversations and at the ICRP. They had some concern that the outside member of the ICRP was silent but could point to nothing to indicate that she had not listened to them. The Applicants’ focus at the hearing before the Board was that they felt they were not heard in the sense that the ICRP did not take their concerns seriously. They submitted that this was the case because the ICRP did not take two specific actions that the Applicants felt were the only conceivable actions if their concerns were taken seriously.

20First, the Applicants wanted the ICRP to direct the Society to either have the mother consent to or impose an on-site mental health assessment for the mother in a facility. The Applicants’ evidence was that at the time of the ICRP the mother was consenting and that they told this to the ICRP. They asked the ICRP to review the file and to take this step to ensure the children’s safety.

21Second, they wanted the ICRP to have the Society confirm that [the partner] should not be permitted near the children. According to the Applicants, their worker was in agreement with this and they advised the ICRP of this.

22The Applicants were given an opportunity to voice their very serious concerns at the ICRP. They were also given the opportunity to request the steps they wanted taken. The outcome of the ICRP as reflected in the December 5 letter was as follows.

1. The ICRP explored the case transfer process to ensure all information was shared with the new worker and was satisfied there was overlap and continuity of care and information.
2. The ICRP stated that their review indicated that the mother had made some progress but that the situation was still in planning, and all observations were documented.
3. The Applicant’s decision to return the children impacted on the transition period of the children to the mother’s care.
4. The ICRP review indicated that :

In addition to the views of the agency staff regarding [mother’s] mental health and parenting capacity, this review process has identified the need for further information and documentation from mental health and addictions professionals, and while we are unable to share specific details, work in this regard is currently underway. We appreciate you bringing your concerns forward and believe the combined efforts of the child welfare professionals and specialists in the fields of mental health and addictions are necessary to better understand risk of harm, in our continued work with [the mother] and her [children]

5. With respect to the concerns about [the partner], the ICRP decision described how allegations are followed up to assess risk, including by interviewing individuals, police checks, information from collaterals and review of historical files. It states further that:

Again, due to reasons of confidentiality, we are not able to provide specific information in response to the concerns you have raised about [[the partner]]. We can say however, that there has been an ongoing assessment by the Family Services workers, on the appropriateness of [[the partner]] proximity to the children, but that this assessment has been ongoing for an extended period of time. With the children now residing in their mother’s care, this review process highlighted the need to accelerate the gathering of necessary information. Gathered information as well as outstanding identified tasks, have been incorporated into the Agency’s ongoing work with the [mother] and the children.

23The Applicants submitted to the Board that these outcomes meant the Society had not taken their concerns seriously because had they listened to the Applicants and reviewed the Society’s extensive file, the ICRP would have directed the Society to take the steps the Applicants had requested.

24The Board made it clear prior to the hearing that it was not its role to determine whether the ICRP’s outcome was valid. However, in determining whether the ICRP took the Applicants’ concerns seriously, the Board did look at the nature and level of follow up engaged in by the ICRP. Outcome can be an indicator of whether an applicant was heard but this must be distinguished from disagreement about which outcome, based on genuine consideration of and follow up to the input of the Applicants. In this case, the outcome was not dismissive of the Applicant’s position; nor were the steps to achieve it.

25The Board heard from the Applicants that they felt the ICRP had not reviewed the file. The Board heard evidence from the Supervisor that she had reviewed the file and that the ICRP had spent approximately 30 hours after the ICRP in follow up, including in interviewing some staff. The December 5 decision of the ICRP refers to reviewing the file. The Board accepts that the ICRP members reviewed the file and that they spent considerable time following up and examining the Applicants’ concerns. They took the concerns seriously and their actions and decision demonstrated this. The ICRP conducted a thorough review of the situation to ensure past and future follow through and to ensure that monitoring was ongoing.

26The Board finds that the ICRP heard the Applicants in every sense of the word as required by the Board’s standard set out at paragraph 12 above. The ICRP engaged in genuine communication and took the Applicants’ concerns very seriously.

Reasons

27At the ICRP the Applicants accepted that there were limits on what information the Society could disclose about the mother and [the partner] At the hearing the Society’s position was that these limits applied whether the Applicants were parents or grandparents and that they were given information consistent with what a parent would have been given in the circumstances. The Board has held that parents may be entitled to information about other parents or third parties in certain circumstances. However, in this instance, the Applicants accepted the parameters of confidentiality as the information being provided by the Society had to do with treatment for the mother and with [the partner]. Most of the information that the Applicants passed back to the ICRP about [the partner] had come from the Society. Because of this and because the ICRP did engage in an in-depth review of the information and provided details in its response, the Board finds that the time delay did not prejudice the Applicants in terms of whether they were treated as parents versus grandparents. The Applicants were in fact given the same consideration as parents and agreed to confidentiality limits.

28The ICRP decision was detailed and informative. It was responsive to the Applicants’ points at the same time as respecting the agreed upon limits in confidentiality. It contained the rationale for the level of intervention taken by the Society to date. It acknowledged specific points of concern about how different workers’ may have perceived the mother and the question of continuity in the file transfer process. It referenced that the ICRP reviewed the file and interviewed staff and reassured the Applicants that the assessment of risk was done in the past and was ongoing.

29The ICRP provided the Applicants with meaningful reasons as required by the Act.

30Again, the Applicants’ main dispute is with the validity of the ICRP’s decision and the fact that the ICRP did not require the Society to arrange or mandate an in house psychiatric assessment of the mother or to ban [the partner] from being near the children.

Composition of the ICRP

31The Applicants submitted that the Executive Director should not have been on the ICRP because he had direct involvement with the complaint prior to the ICRP. The Board had directed the Applicants to provide any emails with the Executive Director and if there were no emails, a summary of conversations had with him, prior to the hearing. The Applicants provided emails but no summaries. At the hearing, they led evidence of calls in which they allege they talked about their concerns with the Executive Director. However, they did not give dates or specifics. The Board has inconclusive evidence to conclude that the Executive Director was directly involved in the complaint. Based on the emails with the Executive Director, the Board concludes that the discussions with the Executive Director were about the scope of (eligibility for) the ICRP. Under the legislation, the Executive Director must set up the ICRP, thus, this was appropriate.

32The Board is however, concerned about the Executive Director being on the ICRP. Under the regulations, the Executive Director has a specific role in the complaints process. He or she sets up the ICRP panel. Further, the ICRP provides its recommendations to the Executive Director and to the applicant. A member of an independent review should not be providing a recommendation from that review to his or herself as this detracts from the more arms- length aspect of the ICRP. The ICRP process is designed to be a more independent means of providing advice to the Executive Director who is tasked with following (or not) an ICRP’s recommendations as the head of a Society.

33The Executive Director should not have been on the ICRP; however, the Board finds that this did not impact on the Applicants’ having been fully heard and provided meaningful reasons. There were no indications that the ICRP including the Executive Director approached the ICRP with a closed mind. Further, the Applicants did not object to his being on the ICRP at the time it commenced. While the Board finds that the Society did not recognize the legislative intent, it will make no order in this regard. There would be nothing to be gained from sending the matter back for a new ICRP.

Conclusion

34The Board finds that the Society through its ICRP process heard the Applicants and provided them with reasons as required by the Act.

35The Board finds that the Society did not follow the legislative time lines and the Executive Director should not have participated on the ICRP. However, the Board makes no orders on these matters in light of the fulsome nature of the ICRP process.

36The Board does wish to acknowledge the very serious nature of the Applicants’ ongoing concerns. The Society advised that it does have an open child protection file and active child protection proceedings. The ICRP directed ongoing follow up and monitoring. The Board trusts that the Society will continue to assess the situation on an ongoing basis, in the best interests of the children.

Confidentiality Order

37Pursuant 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, except with an order of the Court or the Board, as appropriate.

SHEENA SCOTT

_____________________

Sheena Scott

Presiding Member