S.D. & A.G. v. Toronto Children’s Aid Society, 2015 ONCFSRB 24

CHILD AND FAMILY SERVICES REVIEW BOARD

S.D. & A.G.

v.

Toronto Children’s Aid Society

REASONS FOR DECISION

Date: June 22, 2015

Citation: 2015 CFSRB 24

Indexed as: S.D. & A.G. v. Toronto Children’s Aid Society (CFSA s.68)

INTRODUCTION

1S.D. and A.G. filed an application on January 21, 2015 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 Toronto Children’s Aid Society (the “Society”).

2The Application consisted of the following complaints under s.68.1(4) 4 and 5 of the Act, as summarized in the Pre-Hearing Report of May 1, 2015.

That the Society has not heard the Applicants’ service concerns or heard them when decisions were made and has not provided them with reasons for decisions that affected their interests, regarding the following:

1. The exercise of the Society’s discretion in setting the frequency, duration and location of access visits.

2. The facts taken into consideration when making decisions around access, specifically when the Society stopped allowing supervised community access visits after it had allowed them for a period of time.

3. The importance given to the applicants’ use of marijuana in making the above mentioned decisions.

3The Board must decide whether or not the Applicants’ concerns were heard by the Society and whether or not the Society gave the Applicants reasons for its decisions. The hearing on the merits was held on May 28, 2015.

4For the reasons set out below the Board finds that the Society did hear the Applicants’ concerns as required by section 2(2)a of the Act, and that the Society did provide them with reasons for the decisions made in response to some of those complaints, but did not give reasons or explanations to other parts of the complaints, as required by section 68.1(4) 5 of the Act.

BACKGROUND

5The Applicants are the parents of a daughter (the “Child”), born […], 2014.

6The Child was apprehended by the Society on […], 2014, at the hospital where she was born. The Society went to Court with a Protection Application under Section 37(2)(b) of the Act. On May 9, 2014, there was an order made for temporary wardship for six months, with access at the discretion of the Society.

ANALYSIS

7The relevant provisions of the Act are as follows:

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;

68.1(1) If a complaint in respect of a service sought or received from a society relates to a matter described in subsection (4), the person who sought or received the service may,

(a) decide not to make the complaint to the society under section 68 and make the complaint directly to the Board under this section;

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.

68.1(5) Upon receipt of a complaint under this section, the Board shall conduct a review of the matter.

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.

8The Board heard testimony from both Applicants and from the Society’s Family Service Worker (the “Worker”) at the hearing. The Board examined in detail the three complaints listed in the Pre-Hearing Report. As there is significant overlap between the first two complaints, they were combined for the purpose of evidence given at the hearing.

Complaint 1: The exercise of the Society’s discretion in setting the frequency, duration and location of access visits; and,

Complaint 2: The facts taken into consideration when making decisions around access, specifically when the Society stopped allowing supervised community access visits after it had allowed them for a period of time.

9The Court on May 9, 2014 ordered that the issue of access visits was to be at the discretion of the Society. Thus, the frequency, the duration, and the location of such visits were entirely at the discretion the Society. Each of the Applicants was represented by their respective counsel when this decision was made by the Court. The Applicants have not and are not challenging the decision of the Court. They are challenging before the Board the method by which the Society is exercising its discretion, specifically the reasons why there has been a significant curtailment of the visits as scheduled in May 2014.

10Both Applicants testified to the issue of the access visits. The Society did grant access visits to the Applicants. Arrangements for access were that the parents had two visits per week (Mondays for 2½ hours and Wednesdays for 4 hours). Subsequently, in May 2015, an additional weekly access visit was added (Fridays for 2½ hours). All visits were to be supervised visits. On Wednesdays, the parents were permitted to leave the Society office visiting room with the Child, and go into the community, accompanied by the supervising staff. There was a beginning involvement with the child development service for the community visits.

11Access visits by the parents went reasonably well in the period up to the end of 2014. The testimony from the Applicants was that a significant change regarding access occurred in January 2015. The Society from the beginning had been aware that both Applicants had criminal records. In January 2015 it informed the Applicants that it had uncovered new and more detailed information in the criminal records of both Applicants, which led the Society to stop access visits in the community. The Society had decided that there was too much risk to the Child and to the supervising worker to continue with the access visits in the community.

12The Applicants on a number of occasions requested information of the Society as to what specifically in their criminal records made the Society revoke the arrangements for access visits in the community. The Applicants reminded the Society that it had their records when the access visits were arranged after the Child was apprehended. The Applicants now requested that the Society give them the specific reasons for the withdrawal of community visits from two different perspectives, relating to the criminal record:

a) a number of references were made to alleged entries in the criminal record dealing with issues where charges were laid, but where there was no conviction, or where the charges were withdrawn;

b) the allegation that the Child’s father was a member of a gang.

13Regarding point a) above, a few charges were mentioned by the Society, but the Society was unable to distinguish for the Applicants specifically which entries in each Applicant’s criminal record were factors in the decision, and whether these entries were charges that were not prosecuted or whether these entries were charges which led to a conviction. The Board finds that the Society did not give full and thorough answers on this issue, thus leaving the Applicants without knowledge of which convictions were considered, and whether charges for which there were no convictions were factored into the decision as well. Consequently, the Board orders as follows:

ORDER #1: that the Society meet with the Applicant(s), separately or together at their discretion, to fully hear their concerns relating to the grounds for the change in community access visits, and specifically review with them the criminal record that the Society used to make its decision, and give reasons/explanations to the Applicants as to which convictions were factors in the decision, and give an explanation whether any charges that may be in the record for which there was no conviction were considered as factors to change the community visits arrangements.

14Regarding point b) above, the Society indicated that it believes that the Applicant S.D. is a member of a gang, and that this causes undue risk to the Child and the Society worker. This was stated as the reason for the discontinuation of access visits in the community. The Society outlined this in a letter, dated January 22, 2015, addressed to the legal counsel of each of the Applicants:

“In particular, the team discussed Mr. [name redacted]’s gang affiliation which is flagged repeatedly in the criminal records. In light of Mr. [name redacted]’s recent and extensive criminal history and his gang affiliation, the service team decided not to proceed with further community access for [name of both Applicants redacted]. The Society is concerned about a risk of harm to “[Child’s name]” and to the Society worker.

The above is our rationale for using our discretion to move access back into the Society’s offices at this time.”

15At the Board hearing, the Applicant denied that he is a member of a gang, and submitted as evidence correspondence addressed to him from the [City] Police Service. This letter, dated 2015.03.06, is ambiguous. The relevant paragraphs are reproduced here, with specific identifiers redacted as noted:

“Dear Mr. [name redacted]:

Re: Police Files Indicating You are a Known/Active Member of the “[gang name redacted]”

I am responding to your request for access to information, our file [number redacted].

Please be advised that full access has been granted to the enclosed report. (Please note that the report indicating you are a known member of the “[gang name redacted]” could not be located).

The Coordinator is responsible for this decision.”

There are two possible interpretations to this letter. It could mean that the relevant report could not be located because it does not exist. It could also mean that membership in the gang by the Applicant is well-known, and that documentation thereof has likely been seen by a number of people, or that such other people may have in their possession such a report, and that it just happens that the [City] Police Service cannot at this time locate their copy of such a report to share with the Applicant.

16The matter of what the Society knows about the Applicant’s alleged membership in a gang, and what it has in evidence thereof, is critical in how decisions about access visits have been made by the Society, given that the Society has referred to the risks in the community to the Child and to the Society worker. The Board finds that the Society did not give the Applicants an explanation on how it came to the conclusion of his specific gang membership. Consequently, the Board orders as follows:

ORDER #2: that the Society meet with the relevant Applicant, or with both Applicants if they so wish, to fully hear their concerns relating to the Society’s allegation that he is a member of a gang, and that the grounds for the change in community access visits and the grounds for the Society’s belief concerning his alleged membership in a gang be fully explained to him/them, especially in view of the fact that the police do not have a report saying that he is a member of the “[gang name redacted]”

17The Applicant A.G. in her testimony said that the Applicants had proposed to the Society an alternative plan, if the Society felt that being in the community with the Child’s father posed too much risk. The proposal was that the Child’s mother would continue to take the Child into the community, on the time that the Society had allocated for such visits, and that the Child’s father would voluntarily absent himself from such visits, if the Society felt that he would be the one who would contribute to the increased risk because of alleged gang connections. The Applicant indicated that the Society said no to the proposed arrangement, but she was not given reasons on why the Society so decided.

ORDER #3: that the Society provide to the Applicant the reasons why it chose to reject her risk-mitigating proposal to take the Child into the community on her own without her partner.

Complaint 3: The importance given to the applicants’ use of marijuana in making the above mentioned decisions.

18Both Applicants testified that they have and/or have had illnesses where pain management is being achieved through the use of legally prescribed marijuana. The Applicants testified that this is obtained upon a letter of diagnosis and endorsement, dated December 5, 2014, from Dr. [name redacted], a physician at the [name redacted] child development service. The amount used daily is typically one gram. Copies of the Doctor’s endorsement for medical use of marijuana had been submitted to the Board with the Application. The testimony was that they were given one gram each per day. They are not clear on why the medical marijuana was objected to by the Society.

19The Applicants testified that they submit to weekly urine tests, and that they are taking sessions in drug rehabilitation. In view of past issues with drugs, they much prefer not to use any prescription drugs, but to rely on the legally prescribed marijuana.

20The Applicants’ third complaint referred to the use of marijuana, and the role it played in the decision to end community visits. The complaint was not specifically referring to medical use of marijuana, leaving open the question of whether the Society believes that there is marijuana used beyond that which is legally obtained. The Society did not clarify that point at the Board hearing or at any point in the past. The Board finds that the Applicants do not have an understanding of what, if any, importance the marijuana use of the Applicants played in the decision regarding the change in access arrangements.

ORDER #4: that the Society give an explanation to the Applicants as to what role, if any, their use of marijuana played in the decisions in complaints #1 and #2.

21In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33 at paragraphs 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.

22To 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.

CONCLUSION

23The Board finds that on four occasions, the Society did not exercise its responsibility to give the Applicants reasons on aspects of its decision to curtail community access visits. The Board is issuing orders for the Society to give reasons to the Applicants on those four issues.

ORDERS

24The Board orders the Society to provide the opportunity for the Applicant(s) to be heard, and to give detailed written explanation and reasons to the Applicant(s) as noted on four occasions above:

ORDER #1: that the Society meet with the Applicant(s), separately or together at their discretion, to fully hear their concerns relating to the grounds for the change in community access visits, and specifically review with them the criminal record that the Society used to make its decision, and give written reasons/explanations to the Applicants as to which convictions were factors in the decision, and give an explanation whether any charges that may be in the record for which there was no conviction were considered as factors to change the community visits arrangements.

ORDER #2: that the Society meet with the relevant Applicant, or with both Applicants if they so wish, to fully hear their concerns relating to the Society’s allegation that he is a member of a gang, and that the grounds for the change in community access visits and the grounds for the Society’s belief concerning his alleged membership in a gang be fully explained in writing to him/them, especially in view of the fact that the police do not have a report saying that he is a member of the “[gang name redacted]”.

ORDER #3: that the Society provide to the Applicants in writing the reasons why it chose to reject her risk-mitigating proposal to take the Child into the community on her own without her partner.

ORDER #4: that the Society give a written explanation to the Applicants as to what role, if any, their use of marijuana played in the decisions in complaints #1 and #2.

The following timeframes will apply to the above Orders.

For Orders 1 and 2, the Society shall offer to the Applicant(s) a mutually satisfactory meeting time for such meeting to occur within twenty working days of the receipt of this Order, or later if requested by the Applicant(s) and shall follow-up with written reasons/explanations to be mailed within fifteen working days after the meeting with the Applicant(s).

For Orders 3 and 4, the written reasons/explanations are to be mailed within fifteen working days of the receipt of this Order.

CONFIDENTIALITY ORDER

25The hearing was conducted in private and was not open to the public. Pursuant 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.

JOHN F. SPEKKENS _____________________

John F. Spekkens

Presiding Member