D.O. and R.H. v. Kenora-Rainy River Districts Child and Family Services, 2017 CFSRB 15

CHILD AND FAMILY SERVICES REVIEW BOARD

D.O. and R.H.

v.

Kenora-Rainy River Districts Child and Family Services

REASONS FOR DECISION

Date: May 31, 2017

Citation: 2017 CFSRB 15

Indexed as: D.O. and R.H v. Kenora-Rainy River Districts Child and Family Services (CFSA s.68)

INTRODUCTION

1D.O., (“Applicant One”), and her sister D.O., (“Applicant Two”), (together, “the Applicants”) each filed an application with the Child and Family Services Review Board (“the Board”) pursuant to subsection 68.1(4)4 and 5 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (“the Act”), against the Kenora-Rainy River Districts Child and Family Services (“the Society” or “KRR”) on September 14, 2016.

2The two applications were identical in nature, and both applications sought the same results. Therefore, with the consent of the all parties, the Board joined the two applications and heard them together.

3The hearing on the merits was held on March 29 and 30, 2017 in Dryden, Ontario. The Society and the Applicants were both represented by legal counsel. During the hearing, Applicant One served as the chief spokesperson for the Applicants.

4The Application consisted of the following complaints under s.68.1(4)5 of the Act, as summarized in the Pre-Hearing Report dated January 26, 2017:

At the hearing, the Applicants intend to seek reasons and clarity from the Society on the following issues:

1. two younger siblings,

2. The Society’s decision to process the adoption of the Applicants’ two younger siblings, both formerly under the care of the Society, by caregivers in Kenora, Ontario;

3. The Society’s position that, because the Applicants’ younger siblings have been adopted, it has no jurisdiction or role to facilitate access for the Applicants and the Applicants must make visitation requests directly with the younger siblings’ caregivers; and

4. The Society’s position to restrict the Applicants’ access to their case files.

5The Board must decide whether or not the Society gave the Applicants reasons for its decisions. The parties advised the Board they had resolved Issue 3 before the hearing and therefore it was not necessary for the Board to consider it.

6For the reasons set out below, the Board finds that the Society did not provide the Applicants with timely and detailed reasons for decisions that affected their interests on Issues 1 and 2 listed above, as required by section 68.1(4)5 of the Act.

PRELIMINARY MATTERS

7One aspect of the Pre-Hearing Report is in error. Both parties pointed out that Issues 1 and 2 listed in the Pre-Hearing Report refer to an adoption of the two younger siblings. In fact, the caregivers obtained custody of the two younger children by a court order, and not an adoption order. The parties agreed the hearing would proceed on this understanding.

BACKGROUND

8The two Applicants are the eldest of five siblings. Applicant One was born in 1997, and is in the care of Tikinagan. Applicant Two was born in 1996, and is in the care of the Society. As they are now both over the age of 18, their respective agencies have kept them on Continued Care and Support for Youth (“CCSY”), formerly known as Extended Care and Maintenance (“ECM”).

9Tikinagan has a mandate to serve as a child welfare agency for the native communities in Northern Ontario. In that role, its “catchment area” overlaps with that of the Society. A protocol (the “Protocol”) implemented in September 2016 called for the transfer of most native children in care from the Society to Tikinagan, to improve the maintaining of their cultural heritage. The Protocol also provided that in certain cases, for example as older children who had been with the Society on an extended placement, they not be transferred to Tikinagan. In those situations, it was felt that continuity of care would be the primary consideration for not transferring certain children.

10The Applicants have three younger siblings. The older of the three is a brother, born in March 2008. He is living with his father, and is not a subject of the current application. He participates regularly in visits with his four sisters when these occur. The two youngest siblings are girls: S.R., born in March 2007 (“S.R.”), and M.R., born in May 2010 (“M.R.). Since June 2010, S.R. and M.R. have been living in the home of C. and T. G. (the “G. Home”). The G.’s are the former foster parents to M.R. and S.R. and became their custodial parents by court order of April 13, 2016. The two girls are the siblings referred to in the Pre-Hearing Report.

11The mother of all the siblings died in late December 2011. Since then, Applicant One has been spearheading efforts to keep her sibling group together. Her long-term goal is to become a parent figure for the younger siblings.

ANALYSIS

12The relevant provisions of the Act are spelled out in the following sections of the Act 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.

13There are legislated restrictions on the scope of the Board’s review of certain matters:

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;

14The scope of this restriction on the Board’s ability to conduct a review of a matter under s. 68.1(8) has been clarified by the Ontario Court of Appeal: see Children’s Aid Society of Waterloo v. D.D., 2011 ONCA 441 at paragraphs 5, 13, 42, 44, 45.

15In 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.

16To 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.

17At the hearing on the merits, the Board heard testimony from three witnesses for the Applicants, and three witnesses for the Society.

Issue 1

18Issue 1 reads as follows:

The Society’s decision to process the adoption of the Applicants’ two younger siblings, both formerly under the care of the Society, by caregivers in Kenora, Ontario.

19No substantial evidence was presented during the hearing as to when and how the Society gave reasons or an explanation directly to the Applicants, on the Society’s plan for terminating Crown wardship and supporting a court order for the G.'s to obtain custody of the two younger children.

20The Applicants have been involved with the Provincial Office of the Advocate for Children and Youth since September 2014. The Advocate, R.H., stated that the Applicants had reached out to her office for assistance to ensure access visits and a continuing relationship with their siblings. She described the Applicants’ plan to raise the younger children, following their mother’s death. As explained to the Advocate by Applicant One, the plan was that, after graduating from High School, she would take courses in child caring and parenting. She described two Talking Together Circles, held in January , 2016 and in March , 2016, organized around this issue, where this plan was put forth.

21The Advocate also testified that the Society’s response to the Applicants’ plan was that the Applicants were not 18 years of age, and that such a plan might be considered when they turned 18. No evidence was led that this plan was actively considered when the Applicants turned 18, in August 2014 and October 2015.

22During cross-examination, the Advocate stated that she was aware that the Society was seeking the termination of Crown wardship and was supporting a request for a court order for custody. She testified that Applicant One had not been aware of either aspect of this plan until the day before the first court hearing on April 13, 2016, when this order was made. The Court terminated the Crown wardship and made a custody order in favour of the G.'s, relating to the two younger children S.R. and M.R.

23Evidence from F.S., senior staff at Tikinagan, was that the Society’s plan for adoption with the G. family was opposed by Tikinagan. He confirmed that, between 2010 and 2014, access visits were very few, in the neighborhood of a couple of visits per year.

24The Board heard no evidence that the Society, which planned for the termination of the Crown wardship and for the transfer of custody to the G.’s, directly spoke with the Applicants to solicit their input into this plan. The Society had been aware of the Applicants’ interest and intention to plan for the future of their two young siblings. As well, the Society did not in any comprehensive way explain to the Applicants the reasons for confirming and proceeding with the custody plan.

Issue 2

25Issue 2 reads as follows:

The Society’s position that, because the Applicants’ younger siblings have been adopted, it has no jurisdiction or role to facilitate access for the Applicants and the Applicants must make visitation requests directly with the younger siblings’ caregivers.

26Applicant One is currently receiving Continued Care and Support for Youth from Tikinagan. In her application to the Board, she writes that she has been asking the Society to help her and her sister by facilitating regular access visits with their younger siblings:

I have been asking for services from KRR to build a relationship with my younger sisters including asking for regular access visits for over four years.

27On October 6 and 7, 2016 the Society wrote to Applicant One and Applicant Two, respectively, stating its reasons for not being involved in the Applicants’ request for facilitating access visits with their younger siblings. In a rather terse and succinct manner, the Applicants were informed of the Society’s reason, namely:

[…] we have no authority to arrange visits with your younger sisters as they are not in the care of our Agency. Any such visits should be requested from their parents.

28The Board wishes to call attention to the above quote from the Society’s letters of October 6 and October 7, 2016. The letters are correct at the time they were written as to the fact that the “younger sisters are not in the care of our Agency”. However, the letters are not correct prior to April 2016, when the two younger sisters were Crown Wards, placed by the Society in the G. foster home. While the G.’s were a foster home, the Society did have the authority to facilitate and to arrange visits between the younger sisters and the Applicants. The status of the younger sisters only changed significantly on April 13, 2016, as a result of an application by the Society for a court order terminating Crown wardship and granting custody to T.G. and C.G. During the four years that Applicant One states that she was asking for regular access visits, the younger siblings were in the care of the Society for 3½ years of those 4 years. Thus, the Society indeed did have the authority to arrange such visits during those 3½ years that the younger siblings were residing in the Society’s foster home.

29Only following April 13, 2016 was the Society validly able to state that it has no authority to intervene. The Society’s October 6 and 7, 2016 letter did not give any reasons for the Society not facilitating access visits. The Society has a clear obligation to give reasons for this decision, and it did not do so. The Society had not fully heard the Applicants’ requests for access visits which the Applicants had identified as a significant need. The Applicants were not given reasons why visits were not facilitated during those 3½ years in question.

30The Board heard the testimony of senior representatives from Tikinagan and from the Society. Neither setting made reference to any potential obligation or opportunity to assist their respective Applicant when the Applicants were having significant difficulty arranging for access visits or clarifying the issues with the G.’s. This struck the Board as unusual, considering that both Applicants were on Continued Care and Support for Youth with their respective agencies. One would have expected that such assistance from the Society in resolving the issues would have been very valuable to the Applicants. Certainly, this could have been given by the Society under the general role of providing “Care and Support” to their wards in need of support while being on Continued Care and Support for Youth. No evidence was presented that any such assistance was offered or provided.

31The Board has concerns about the tone and tenor of the Society’s view of the Applicants and their request. For example, the Society during the hearing used the phrase that access had been “sabotaged” by the Applicants. No evidence whatsoever was presented of any ill-intentioned actions by the Applicants that would warrant such a descriptor. The Applicants were clear on what they were seeking, namely continued regular access to their siblings. Current legislation, child welfare standards, and common sense would support such an endeavor in this situation. Yet the Society did not hear this as a priority for the Applicants.

32The Board heard evidence from the senior managers from the Society and from Tikinagan. It is apparent that confusion resulted from the protocols developed around September 2016, concerning the transfer of indigenous children from the care of the Society to Tikinagan. Blame was placed by each of these witnesses on the other’s organization for difficulties experienced in the implementation of this protocol; specifically around which young persons were to be transferred and which were not. However, it struck the Board that in the Society’s testimony, the needs of the Applicants and their siblings did not appear to be a focus of concern, and the Applicants were not given the reasons to which they were entitled.

33At the hearing, because of time pressures, it was agreed by both parties that they would make their closing submissions in writing. Both parties submitted their closing submissions by the agreed upon date of April 28.

34The Society’s Final Submission states:

While it is fair to say that the evidence of the Complainants spoke of such an alleged failure, it is the Society’s respectful submission that every effort was made by the Respondent Children’s Aid Society to keep the [family name]’s Band’s [sic] and their legal representative, Tikinagan Child and Family Services, fully apprised of its intentions around permanency planning and facilitating ongoing sibling access.

35It is striking that the above quote, written by the Society, fails to mention the Applicants as being kept “fully apprised” on the essence of both Issues 1 and 2.

36The Board heard evidence, from both the Society and from Tikinagan, about discussions and disagreements between the two agencies, concerning plans for the future of the Applicants’ siblings. What was striking was the paucity of any reference to talking with and soliciting input from the Applicants, thus failing in their obligation to fully hear the Applicants and to give them full reasons for the Society’s decisions in line with P.O. v. Family and Children’s Services Niagara quoted in paragraph 15 above.

OBSERVATION

37The Board wishes to highlight the strength and character displayed by Applicant One during her testimony at the hearing. She is a young person who faced tremendous challenges relating to her mother’s death at a time when she was only 16 years old. From planning her mother’s funeral to her continuing efforts since 2012 to striving to keep her siblings connected with one another and with their culture, she has displayed maturity, family commitment, and wisdom well beyond her years. She and her sister, as the eldest siblings, have felt frustrated by a system mandated to help them and their family with their current struggles and planning for their future.

38The Applicants fully realize the legislative limitations on the actions available to the Board on a section 68.1 application. They realize that the Board cannot turn back the clock, and reverse recent events. However, they are persistent in their desire to know the reasons behind the substantial decisions that have significantly impacted their family. These are the Society’s support for the application to the court for a termination of Crown wardship and the custody arrangement in favour of the G. family, and the Society’s unwillingness to facilitate access visits.

CONCLUSION

39The Board finds that the Society has not given the Applicants regular opportunities for active and meaningful input into the Society’s decision making processes concerning their family. The Applicants did not have real input into the Society’s decisions, and were not given enough information to make informed responses to, or to accept the Society’s decisions regarding its support of the termination of Crown wardship and support for the current custody arrangement.

40Similarly, the Board finds that the Society has not given the Applicants comprehensive and understandable reasons regarding its lack of action on their request for regular access with their youngest siblings during the time period when the younger siblings were in the care of the Society.

ORDERS

41With regards to Issue 1, the Board orders the Society to give the Applicants in writing a thorough and comprehensive set of reasons why it supported the court application for Crown wardship termination and support for the custody order in favour of C. and T. G.

42With regards to Issue 2, the Board orders the Society to give the Applicants in writing a thorough and comprehensive set of reasons why it did not facilitate access visits when the Society had the authority to do so during the time period leading up to the court custody order.

43The Society’s reasons are to be mailed by June 30, 2017 to the Applicants.

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

John F. Spekkens ___________________

John F. Spekkens

Presiding Member