D.D. v. Children’s Aid Society of Toronto, 2016 CFSRB 63

CHILD AND FAMILY SERVICES REVIEW BOARD

D.D.

v.

Children’s aid society of TORONTO

REASONS FOR DECISION: WRITTEN HEARING

Date: December 28, 2016

Citation: 2016 CFSRB 63

Indexed as: D.D. v. Children’s Aid Society of Toronto (CFSA s.68)

1The Child and Family Services Review Board (the “Board”) received an application from the Applicant on March 7, 2016 regarding a complaint against The Children’s Aid Society of Toronto (the “Society”) pursuant to section 68 of the Child and Family Services Act R.S.O. 1990, c. C. 11, as amended (the “Act”).

2On March 14, 2016, the application was found eligible under sections 68.1(4)4 and 5 of the Act, as summarized in the Pre-Hearing Report dated May 19, 2016. The Board received the Society’s response on March 22, 2016, 2016 and a pre-hearing settlement facilitation took place on May 19, 2016. The parties agreed to participate in settlement discussions on that date. The parties entered into a Settlement Agreement (”the agreement”) with an implementation date of June 1, 2016 and a non-compliance date of June 10, 2016.

3The Board received submissions from the Applicant alleging non-compliance of most of the terms of the agreement. On June 22, 2016 in accordance with the Board’s procedures, the parties held a teleconference to deal with this matter. The Board issued its reasons for the decision on compliance on June 23, 2016. In that decision, the Board determined it would hear the Applicant’s concerns about the 10 issues identified below by written hearing. The parties were invited to file written submissions. The Applicant filed her submissions on September 22, 2016, the Society on October 14, 2016 and the Applicant responded to the Society’s submission on October 31, 216.

4The Board finds that the Society met its obligations through its written submissions to hear the concerns of the Applicant and provide her with reasons for decisions that it made with regard to half of the Applicant’s issues but not the others. The Board’s reasons and orders follow.

BACKGROUND

5The Applicant became involved with the Society in [date] when she signed a voluntary Temporary Care Agreement (“TCA”) with the Society to care for her son (“the Child”) who would turn [ ] years of age in [date]. The reason for the initial placement was to allow the Applicant to address her mental health needs.

6A second TCA was signed on [date] for [ ] months because the Applicant was not ready to care for the Child at the end of the first TCA. The Society would have to pursue a permanent plan for the Child at the end of a year because he was not yet [ ] years old at the time of the first TCA. The Society provided the Applicant with the necessary documents to place the Child for adoption on [date], as a step in the process of permanency planning for him.

7In the fall of [year], the Applicant had made some progress and the Society started to plan for the Child’s return. Access between the Applicant and the Child was increased in [date]. The Child reacted negatively to access and was not placed in the Applicant’s care. The Child disclosed allegations of abuse that were verified following a number of investigations. The Child maintained that he did not wish to return to the Applicant’s care. The Child was made a Crown Ward without access on [date].

ANALYSIS

8The 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) dismiss the complaint; or

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

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

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

9In 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.

10The “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.

11To 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.

Issue #1: Apprehension of the Child in [date]

12The Applicant wanted reasons to allow her to understand the “risk” to the Child at the time of his apprehension. In addition, she wanted reasons for the decision not to allow the additional [ ] weeks available (to [date]) before pursuing Crown Wardship given that the Child came into care on [date]. At that time, the Applicant had indicated to the Society that she needed a bit of extra time before being ready to have the Child returned to her care. The Applicant argued that the response provided by the Society as part of the agreement did not provide this information.

13The Society takes the position that its reasons for the apprehension were matters before the court and the applicant has been provided with all the Society’s submissions including affidavits to the court and therefore it has met its obligation to provide reasons. The Society’s written submission differs very little from the reasons provided to the Applicant after the Settlement Agreement. The only new information provided concerns the Applicant’s statement that she needed extra time before resuming the Child’s care. The Society disagrees and indicates this request was confirmed in a discussion with her worker on [date] during which the Applicant stated that:

(…) she had not been able to get herself together for the past year and that she was not complying with medical directions and her doctor discontinued serving her for that reason.

14However the Society’s response continues to fail to hear the Applicant’s concerns or to answer the following questions posed by the Applicant:

a. What is the explanation for the Applicant’s allegation that her mental health was not a concern identified in the Society’s court documents whereas it is a concern in this response;

b. What is the explanation for the Society having concerns about the Applicant’s mental health in [date] but in the fall of [year] expressing the view that she had made sufficient progress for the Society to consider a reunification plan at that time;

c. When were the Society’s concerns regarding the Applicant’s inadequate accommodations communicated to the Applicant and how was this documented (e.g., case notes); the Applicant took issue with this as a concern given that the worker is alleged to have visited her apartment on two occasions and made no mention of any concerns regarding the accommodations being inappropriate;

d. What is the documentation (e.g., case notes) that supports the Society’s position that the Applicant wanted to relinquish the Child in [date].

e. What specific sections of the Act did the Society rely upon at the time that it made the protection application in [year] as to the reasons/circumstances why the Child was in need of protection?

15The Board acknowledges that in the course of lengthy court proceedings in the matter, the Applicant or her counsel would have been provided with documentation. However, the Board was not provided with the same documents and does not know what specific information was included. Furthermore, the test the Society must meet in order to satisfy its obligations to hear a client and provide a client with fulsome and understandable reasons for its decisions is not the same as the test to be met in the court proceedings.

16The Board finds that the Society’s has not heard the Applicant’s concerns and provided adequate reasons for its actions to the Applicant.

Issue #2: [Date] E-Mail

17This matter relates to an e-mail exchange between the Family Services Worker and the Child Services Worker relating that the Child told his Office of the Children’s Lawyer that he wanted more access with his mother. The Applicant only became aware of it in [date] through her counsel. The Applicant was not provided with reasons why she had not been informed at the time.

18The e-mail referred to in this case was dated [date] and included a statement that the Child had shared with his counsel that:

… he desires to have access on a weekly basis instead of bi-weekly basis

19The Society stated in its submission for the purposes of the written hearing that the Child had not met with his counsel since early [date] which was before the Child’s disclosure of physical abuse and inappropriate discipline. After the disclosure, the Society was supporting supervised access at the Society’s offices in [date]. The Society explained in its submissions that the information provided by the Child’s counsel would have been obtained by counsel in or before early [ ] and therefore was “stale” information.

20The Society further submitted that:

On [date], the Child advised the Children’s Services Worker that he liked access the way it was then currently structured and he did not request any increase in access.

21The Applicant found out about the e-mail in [date] through her counsel. The Society did not share it with her at the time because the Child had expressed a different position on [date] and the position he had taken in early [ ] was not the same position. A copy of an Electronic Contact Log for a contact with the Child on [date] was attached to the Applicant’s submissions. The log created for this contact indicated that the Child responded positively to having visits take place at the Society’s offices and wanted visits with the Applicant in the community to take place in the office instead because he did not feel so good about them.

22The Society did not submit any documentation related to the comment made by the Child on [date] referenced above. Nor did the Society provide an explanation regarding why the email would have been sent at all given that by [date] the Child’s position had changed and one or the other of the workers involved in the exchange would have or should have known this. Providing such an explanation is important for the Applicant to fully understand an issue of significance to her.

Issue #3: Case Notes from Access visits

23The Applicant requested copies of the notes taken during her access visits with the Child during the period of [date] to the end of [date].

24Copies of the case notes referred to were requested of the Society on [date] and were received on [date]. A cover letter indicated that the Applicant was copied.

Issue #4: Assessments of the Child

25The Applicant raised a concern regarding the reasons why a psycho-educational assessment was sought with Dr. [ ] who requested it and\or who recommended it. She also raised a concern related to how this assessment was different from the assessment done by Dr. [ ].

26The Society explained in its submission for the purposes of the Agreement that Dr. [ ] undertook an assessment to better understand the nature of the Child’s attachment to the Applicant given the apparent “disconnect” between the Child’s comfortable behavior at access visits with the Applicant versus his negative reaction when he was told by the Society of its plan to work toward reuniting the child with the Applicant. The Case Management Team made a decision to undertake this assessment in the fall of [year].

27In the submission prepared for the purposes of the written hearing, the Society explained that the assessment by Dr. [ ], which was completed in [date] was a psycho educational assessment which was done for more general purposes, namely to assess the Child’s needs and how to better meet them. This was different from the questions being asked through Dr. [ ]’s assessment.

28The Society did not explicitly state in its submissions who requested/or recommended Dr. [ ]’s assessment. The Board assumes that this assessment occurred as the result of deliberations and decisions made by the Child’s Case Management Team. However, the Society’s explanation made it clear that the two assessments were done for different reasons and to provide different information to the Society.

29The Applicant raised a question concerning why she was not involved in the decision to engage these professionals. The Society was silent on this point.

30The Society failed to provide a response regarding the Applicant’s involvement in the decision-making process related to undertaking the assessments and the reasons why she may have or may not have been involved. The Society also failed to provide any specific records that support its position regarding this matter.

Issue #5: [Date] Abuse Allegations

31The Applicant had a number of concerns related to the Society’s investigation into the allegations of physical abuse and inappropriate discipline made by the Child in [date]. These concerns related to possible alternate scenarios for the location of the incidents, factors considered in the verification decision, failure of the Society to accept the Applicant’s suggestion to view video tapes of the alleged location of the incidents, communication of the results of the investigation to the Applicant and the Society’s decision to suspend her access to the Child in [date].

32Alternate scenarios: The Applicant focuses on a disclosure by the Child that related to a man being in the apartment that the Applicant shared with the Child and hiding under a bed in his room. The Applicant alleged that this could not have happened because there were drawers attached to the bed and no space for the Child to hide under it. The Applicant suggested that the alleged abuse might have occurred in another location as a way of explaining this discrepancy. The Society in its submissions was focused on the Child’s statements regarding alleged abuse by the Applicant made in [date] involving inappropriate physical discipline and physical abuse of the Child. The Society submitted that the Child made specific reference to these events occurring while he was in the Applicant’s care. In addition, there was no information that the Society obtained that indicated that the Child hid under the bed and therefore no need to look into this statement.

33The Society’s further submissions for the purposes of the written hearing stated that the Applicant was confusing the physical abuse disclosure incident that occurred in [date] with another incident involving a man in the home and possible [ ] abuse. Although both incidents were raised by the Child during the same interview, the investigation in this instance was about the incident involving allegations made by the Child against the Applicant.

34The Applicant provided a copy of a Contact Log dated [date] that documented statements made by the Child regarding a number of incidents. The Child did not state that the two incidents occurred at the same time nor is there explicit reference to hiding under his bed. The statement made within the context of the Child’s disclosure of possible [ ] abuse was reported as follows:

… He [the Child] ran into the bedroom and hid. ….

There is no mention in this note of hiding under a bed.

35Factors considered in the verification decision: In its submissions for the purposes of the written hearing, the Society outlined the factors that it took into account in the verification decision as follows:

1. The statements made by the Child and the clarity of those statements;

2. The Applicant’s admission of the abuse described and use of inappropriate physical discipline; and,

3. The record of the 911 call made by the Child which corroborated the Child’s statements.

36Viewing of videotapes: The Society stated in its response for the purposes of the Agreement that the videotapes were not considered to be relevant given the strength of the disclosure made by the Child and the fact that the police corroborated the 911 call and this was sufficient. In its submissions for the written hearing, the Society reiterated the same point. It also pointed out that the Applicant had confirmed aspects of the disclosure that were consistent with the Child’s statement. It concluded that this information taken together was sufficient to make a verification that the specific actions that constituted abuse and inappropriate discipline did occur, namely, the tying of the child to the bed and making the child kneel for periods of time.

37Communicating results of the investigation: The Society outlined in detail the chain of events involved in the investigation into the Child’s allegations of physical abuse and inappropriate discipline. These were outlined in the response prepared for the purposes of the Agreement. The identical response was submitted by the Society for the purposes of the written hearing.

38The Board concludes that the Society satisfied its obligation to provide reasons that were sufficiently detailed to understand why it made the decision that it did regarding alternate scenarios.

39The Board concludes that in general the response is sufficiently detailed with regard to the concerns raised by the Applicant to understand why the Society made the decisions it did. However, the Society’s response failed to provide the Applicant with reasons for the suspension of her access visits with the Child. The Board acknowledges that there may be implicit reasons why the action was taken by the Society but they are not explicitly stated by the Society in any of its submissions as required.

Issue #6: Supports to the Applicant

40The Society’s response for the purposes of the Agreement was found to be lacking in detail regarding what supports were offered to the Applicant, when they were offered and who offered them to her.

41The response prepared by the Society as part of the Agreement included an extensive list of services with which the Applicant had been provided. It commented in that response that the Applicant had found many of them on her own and these would not be ones that the Society would necessarily duplicate. It also mentioned coordinating services to ensure follow through by maintaining contact with providers and to ensure lack of duplication.

42The Society outlined in its submission for the purposes of the written hearing detailed information regarding the supports that it offered to the Applicant apart from the extensive list included in its earlier response. Parenting education was offered at each access visit. Service coordination was offered throughout her involvement. The Applicant participated in Plans of Care meetings every [ ] months and was asked to participate in the psychological assessments of the Child.

43The Society included in its responses to this matter comments on legal supports. The Society stated that it ensured that the Applicant had independent legal advice in [year] when she was considering relinquishing the Child. In its response for the purposes of the Agreement, the Society had stated that the Applicant was provided with a list of [ ] lawyers with experience in child protection matters and adoption. In its submissions for the written hearing the Society further stated that it limited the independent legal advice to $[ ] per hour up to a maximum of [ ] hours. The Applicant engaged one of the lawyers on the list provided by the Society. The lawyer engaged is identified and the contact with the Applicant was in [date]. The Society stated that the worker did not have a receipt for the services the Applicant received but it expected the amount to be no more than $[ ].

44The Board concludes that the information provided in the Society’s responses was detailed enough for the Applicant to understand the range of supports provided, what supports were directly provided and those that were provided by other agencies and monitored by the Society and the timing of them.

Issue #7: Applicant’s Participation in Case Conferences

45The Applicant raised a question regarding why she was not asked to participate in the conferences held at the Society other than at the last [ ] minutes.

46The Society stated that conferences are an opportunity to reflect on a case and discuss how to move a case forward. This is often done with legal counsel and parents do not participate in this part of the meeting due to solicitor/client privilege. Once the Society has had this part of its discussions, parents are invited to participate in the discussion. In its submissions for the purpose of the written hearing, the Society disputes that the Applicant’s involvement was limited to only [ ] minutes and explained it may have only lasted that long based on the extent to which the Applicant involved herself. The Society stated that there is no time limit on the involvement of a parent in such discussions. It further stated that the Applicant was quiet, withdrawn and did not offer or elicit information or ask many questions during these discussions.

47The Board concludes that the Society met its obligation to provide an explanation about the actions taken with regard to this matter that was sufficiently detailed to understand it.

Issue #8: Society’s Expectations of the Applicant

48The Applicant raised a concern regarding what explanation was ever given to her by the Society about the expectations she had to meet in order for her to regain care of her Child. She had specific questions about when discussions with Society staff related to this matter occurred and with whom they occurred.

49The Society’s submissions for the purposes of the Agreement stated that the Applicant was informed about reasons for its position and expectations through the Plans of Care that were filed with the court and shared with the Applicant’s counsel. In its submissions for the purposes of the written hearing, the Society suggested that the Applicant knew at the outset that the concerns had to do with her diminished mental health, lack of appropriate accommodations and inadequate parenting skills. The expectations were associated with these identified concerns, namely, to adequately address all of these concerns by using any ongoing feedback she may have received directly from workers supervising her access and by following through on treatment recommendations and ongoing service and supports. The reasons identified for the Society’s involvement with the Applicant were clear at the outset and remained the focus throughout its involvement. The Society did not include any records related to this matter in order to identify details such as dates of Plans of Care meetings and who may have been present at them.

50The Society’s concerns regarding the Applicant’s parenting became more heightened over time as a result of the Child’s disclosure of abuse in [date]. In addition, by the end of the case, the Society took the view that the Child’s resistance to returning to the care of the Applicant was a significant determinant of its plan for the Child.

51The Board concludes that the Society’s responses were lacking in sufficient detail such as reference to Plans of Care or other records that included specific mention of expectations, the dates of these records, Society workers involved in such discussions and how these records were shared with the Applicant.

Issue #9: Legal Advice for the Applicant

52The Society stated that it funded independent legal advice for the Applicant, however, she stated that she had no knowledge of this. She raised specific questions related to the matter such as who was retained, when, and how much was paid by the Society.

53The Board has already commented on this matter in the preceding paragraphs related to supports offered to the Applicant (Issue #6) and concluded that the Society met its obligations to provide sufficient detail to understand the Society’s actions regarding this matter.

Issue #10: Adoption Statements by the Applicant

54The Applicant raised concerns regarding the information that the Society had on record about when she stated that she wanted to place the Child for adoption and who was present when she made such statements.

55In the response prepared for the purposes of the Agreement, the Society identified [ ] occasions on which the Applicant stated that she wished to put her son up for adoption. [ ] of those occasions were in discussions with Society workers. The date, the name and title of the worker to whom the Applicant spoke is identified as is the date on which the discussion took place in each of these [ ] cases. In its submissions for the written hearing, the Society clarifies that only the persons identified in this list were present given that all of the conversations with the Applicant were confidential.

56The Board concludes that the Society’s response was sufficiently detailed to meet its obligation to provide the Applicant with meaningful reasons.

CONCLUSION

57The Board finds that the Society’s submissions for the purposes of the written hearing were sufficient with regard to some of the issues. However, the Board concluded that in some instances the submissions of the Society did not provide explicit reasons for its action or explanations that were sufficiently detailed to lead to an understanding of why and how certain decisions were made.

Board Decision

58After reviewing the complaint, the Board may under s. 68.1(7):

(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.

59The Board makes the following orders to address the lack of detail with respect to the Society’s responses to some of the issues. These orders focus on aspects of the Society’s explanations that were lacking in detail, answers to specific questions raised by the Applicant as well as the provision of Society records that fulfill the same purposes. The Ministry of Community and Society Services has established policy with regard to a client’s access to case records. The Society is required to comply with these policies. The Board’s orders with regard to providing specific records or documents to the Applicant are consistent with these policies.

60Issue #1: The Board orders the Society to provide written answers to the following outstanding questions

1. Why it did not identify the Applicant’s mental health as a concern in its court documents but raises it as a concern in this response. If it did raise this in the Court documents, identify the document and provide the page and paragraph numbers where the information is noted;

2. Why its concerns about the Applicant’s mental health in [date] had resolved sufficiently by the fall of [year] that the Society was willing to consider a reunification plan at that time;

3. When its concerns regarding the Applicant’s inadequate accommodations were communicated to her. When, how and by whom was this documented along with copies of relevant documents.

4. What documentation (e.g., case notes) supports the Society’s position that the Applicant wanted to relinquish the Child in [date]? In responding to this concern the Society must provide names, dates, and other specific information to permit the applicant to know and understand the basis for its decision along with copies of relevant documents.

5. What specific sections of the Act did the Society rely upon at the time that it made the protection application in [year] in support of its position the Child was in need of protection?

61Issue #2: The Board orders the Society to provide the following to the Applicant regarding this issue:

1. A copy of the record that supports the Society’s assertion that: On [date], the Child advised the Children’s Services Worker that he liked access the way it was then currently structured and he did not request any increase in access.

2. An explanation for why either/both of the workers involved in the e-mail exchange on [date] would not have been aware of previous statements made by the Child on [date] and [date] that were inconsistent with the content of the e-mail dated [date].

62Issue #4: The Board orders the Society to provide the following to the Applicant regarding this issue:

1. A written account of the Applicant’s involvement in the decision to engage Dr. [ ] and Dr. [ ]and the reasons for her involvement or lack of involvement whichever may have been the case.

2. Copies of any relevant records that relate to the Applicant’s involvement in this matter.

63Issue #5: The Board orders the Society to provide the following to the Applicant regarding this issue:

Written reasons why the Applicant’s access to the Child was suspended in [date] including reference to any standards or policies relied upon in making the decision to do so and any specific details associated with the suspension such as the period of time involved, the nature of any alternative contact options, and similar information.

64Issue #8: The Board orders the Society to provide the following to the Applicant regarding this issue:

Copies of all Plans of Care and other records that reflect written expectations that the Society had of the Applicant over the lifetime of the file, the date of the records, the participants in any related discussions, and whether and how such documents were shared with the Applicant.

65The Board orders the Society to comply with the orders set out in the preceding paragraphs within 45 days of the receipt of these reasons and to provide copies of any written responses and documents referenced to both the Applicant and the Board. The Board will remain seized of the matter for 60 days from the date of these reasons.

CONFIDENTIALITY ORDER

66Pursuant 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.