CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

TA

Applicant

-and-

Children’s Aid Society of Toronto

Respondent

DECISION

Adjudicator: Michele O’Connor

Date: July 04, 2022

Citation: 2022 CFSRB 31

Indexed As: TA v Children’s Aid Society of Toronto (CYFSA s.120)

APPEARANCES

TA, Applicant

Self-represented

Children’s Aid Society of Toronto, Respondent

Sherri Smolkin,

Counsel

Introduction

1T.P. (“the Applicant”) filed a complaint against the Children’s aid Society of Toronto (”the Society”) on March 14, 2022 under sections 120(4)4 and (4)5 of the Child, Youth and Family Services Act, 2017, SO 2017, c.14, Sched. 1.

2This Application consists of the following concerns which were identified jointly by the parties during the pre-hearing:

1. The Applicant alleges that he was not provided with reasons for why financial support was removed and why this was done without notice;

2. The Applicant alleges he was not heard regarding his request for ongoing financial support until Y’s placement; and

3. The Applicant alleges he was not informed by Respondent staff of the timeframe of the placement of the child.

3The CFSRB must decide whether the Society met its obligations regarding the Applicant’s complaints, i.e. was he given an opportunity to be heard, and was he given reasons for decisions that affected his interests.

4The hearing was held on June 3, 2022. The Applicant testified, as did SG, of Community Living Toronto. The Society called evidence from TN, Supervisor of Intake. Both parties filed documentary evidence.

5For the following reasons, the CFSRB finds that the Society did give the Applicant an opportunity to be heard, but it did not provide him with satisfactory reasons for its decision.

BACKGROUND

6The Society has been involved with the Applicant and his family since November of 2021 in relation to his son, YT, (“the Child”) who has been diagnosed with ASD/ADHD. Autism and Developmental Delay.

7The Applicant lives in Toronto with his wife and 2 children (the Child and his 12-year-old sister).

8The family has been historically supported by Community Living Toronto (“CLT”) and other community organizations. According to the Applicant, his son’s behaviour began to change in the summer of 2021, at which time he became increasingly aggressive, hitting, throwing things etc. His concerns about his son’s and his family’s safety intensified.

9In November, the Child was seen at the Hospital for Sick Children Emergency Department following severe and aggressive behavioural challenges and threatening behaviours toward his mother and younger sister. The hospital referred the family to the Society for assistance.

10The Society did not recommend that the Child be admitted to its care. Rather, it sought to support him remaining at home until a community based residential program became available because there were no “protection” issues. The family was willing to have him remain in the home and there was no appropriate placement immediately available through the Society that would meet his needs.

11The Society offered respite or a referral to a program for YT. CLT had already put in place respite care for 4 hours six days a week. The Applicant wanted respite during school hours and for YT to attend a residential program to learn self-regulation and behavioural management skills so he could then be supported at home.

12On December 29, 2021, after a 911 call the Child was taken to the ER at Michael Garron Hospital (“MGH”) where he was admitted for assessment. The hospital social worker and CLT were recommending residential placement for him at Lumenus.

13The hospital was looking to discharge the Child. On January 31, 2022, the Society offered additional one to one support in the home including overnights. It advised the Applicant that this would be assessed after a month while the family waited for the residential placement. The parents declined one to one in-home supports. The Applicant suggested that he could stay home from work to care for his son if given some financial assistance.

14On February 3, 2022, the Child was discharged from MGH with a discharge plan, a behavioural plan and medications. The family was told they must utilize all available supports prior to bringing YT back to the hospital.

15After some discussion internally and with the family, the Society offered the Applicant financial support to compensate for his wages so he could stay home from work to care for YT. It made 2 payments of $4,000 each to the Applicant, one in mid-February and another in mid-March of 2022.

16On or about March 4, 2022, prior to the second payment, the Society advised the Applicant it could not continue the payments. It offered various other supports which the family declined, and it continued to advocate with residential treatment program, Lumenus, for the earliest possible admission date which was tentatively scheduled for April 18, 2022.

17The Society’s evidence was that this financial support was offered “for a few weeks” and that it advised him this would be re-assessed every 2 weeks. The Applicant and his witness, SG, from CLT testified to their understanding that the funding would continue until the residential placement for the Child became available and that it would be reviewed every 2 weeks.

18The Child was admitted to Lumenus residential program on May 3, 2022. The Applicant and Society have had only minimal contact since that time and its file is now closed.

19The question in this hearing is what were the terms of that financial support? What was the Applicant told about how long it would last, when it would end, and why?

ANALYSIS

20The relevant provisions of the Act are set out below:

Section 120(4) of the Act provides:

The following matters may be reviewed by the Board under this section: …

4. Allegations that the society has failed to comply with subsection 15(2);

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

Section 15(2) provides:

Service providers shall ensure that children and young persons and their parents have an opportunity 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.

Section 120(7) of the Act provides:

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;

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

(e) dismiss the complaint.

21In PO v. Family and Children’s Services Niagara 2012 CFSRB 38 at paras. 14 -15, the CFSRB described the purpose of provisions equivalent to s.120(4)4 and 5 of the Act in its predecessor legislation, i.e., sections 68.1(4) 4 and 5 of the Child and Family Services Act, RSO 1990, C.11, 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 her concerns are taken seriously and dealt with thoroughly.

22This description of the purpose applies to the current legislative scheme.

23Moreover, the right to reasons under the Act means a right to a meaningful explanation about decisions that affect the applicant’s interests. In JG v Windsor Essex Children’s Aid Society, 2013 CFSRB 8, the CFSRB held that:

With respect to s.68.1(4)5 (now s.120(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.

24The Act does not mandate or permit the CFSRB to make determinations as to the clinical wisdom or validity of decisions made by the Respondent and for which the Respondent is giving reasons under s.120(4)5.

ISSUES

1 The Applicant alleges that he was not provided with reasons for why financial support was removed and why this was done without notice

25The Applicant testified that he remained home to care for his son following the Child’s discharge from MGH. He understood that the Society would subsidize his wages from his two jobs until his son was admitted to Lumenus. This evidence was echoed by his witness, SG, from CLT. He agreed that the Society had offered other services while it continued looking for a temporary placement for YT. These services included 24 hour in-home respite, to pay for the mother and sister to stay elsewhere for a few weeks, transportation for them to stay with other family members, or to pay for a lock on the sibling’s door, All of these services were declined by the parents.

26In mid-February, while the Applicant was at home caring for his son, the Society discussed with him the barriers to in- home respite including, among other factors, covid restrictions. The Applicant agreed that a respite worker could spend time with YT outside of the home for 2 hours after school. The Applicant spoke to the worker about changing his work hours so he could be at work when YT was in school. He subsequently confirmed that his employer had agreed to him returning to work for 4 hours a day instead of his usual 8 hours starting after March Break..

27As noted above, on or about March 4, 2022, the Society advised the Applicant it could no longer compensate him for his wages. After that discussion it made one further payment,

28On March 25, 2022, the Society met with the Applicant and SG to discuss how to continue to support the family while awaiting YT’s placement. The Applicant was only prepared to have respite care outside of the home with the same worker each time. The scheduled worker had other commitments and was not able to attend more than the current 2 days weekly. The Society offered to support community activities for YT and or his sister but, reportedly, the Applicant advised this was not needed.

29The Applicant testified that his objection to the offered in-home services was predicated on his son’s reaction to strangers “triggering” him as he had had previous unsuccessful experiences with in-home respite. He said his son was “fine” as long as he was at home with him, but he had serious concerns about returning to work before his son could be placed at Lumenus. He attempted to explain this to the Society workers but when the funding stopped, he stopped talking with them. He wrote to his local MPP and to the Ministry of Children and Youth for help. He said he had a solid plan and that he and his family worked together to protect YT until the group home placement became available.

30The Applicant testified that that there were no terms associated with the payments from the Society. He said he was told only that it would be reviewed every two weeks. He was NOT told what would be reviewed, or what the review would entail. He said he texted the worker regularly with updates and kept the Society informed. He denied ever being told that the funds would only be “for a couple of weeks”. His understanding was that it was to cover his income until YT was placed in the residential program.

31The Applicant acknowledged that he returned to work part-time after March break. He also acknowledged that he stopped communicating with his worker after he was told the funding would stop. He said he tried to get them to extend the funding but was told it was a final decision. At no time was he told how the Society calculated the amount they paid him (i.e. $4,000 per month) or the duration,

32SG testified on behalf of the Applicant. She has a Master’s degree in Child Psychology and works as a Home Management Consultant with CLT. She has been involved with the Applicant and his family providing community supports for the Child since August of 2021. She participated in many of the Applicant’s discussions with the Society and in most of the Zoom calls with the hospital and various resources around the Child’s pending discharge and placement options. Her evidence was that the Society offered to pay for the Applicant’s salary in order for him to stay at home to best support YT and to protect his wife and daughter from YT’s aggression. “The family and myself were told that CAS will support this plan until a suitable treatment program was available”. She said that the Applicant received a call on March 4, 2022, advising the Society would no longer be paying his salary. “The family was very concerned about how they were going to manage if (the Applicant) had to take another leave of absence from work with no salary. There was no meeting or warning to discuss this decision.” In her opinion, “This is a truly loving family who only want the best for their son and will do anything they can to support (the Child). The Society removed their support without warning or consideration of how their decision would affect this family.”

33The Applicant acknowledged a good relationship with the Society workers and confirmed that when he reached out to them, they responded. Communication was good. He had “absolutely no problem with that.”

34The Applicant also acknowledged that the worker and supervisor were clear with him that the payment arrangement would be assessed every two weeks. “Yes. But there was nothing about when it would end. I thought it would be a review, not a termination.”

35As noted above, this was also the understanding of the CLT worker, SG. She testified that she was not included in the March 4, 2022, meeting where the Applicant was told the funds would stop. Usually, the Society included her in its discussions with the Applicant and his family because of her “intense involvement” with them. In her view, and that of the Applicant, she should have been called before this meeting to help the family understand what was going to happen.

36SG acknowledged awareness of the Society’s limited financial resources and that she had not seen a Society offer this kind of support previously. But she thought that its offer of 2-1 respite workers 24/7 in the home would have been more costly than salary replacement for the Applicant. She thought it was a good financial decision and “a great alternative to keep the child and family safe”.

37SG also acknowledged that the Society offered respite care on an ongoing basis but reiterated that her agency and the Society were unable to find workers because several of the agencies were closed due to Covid. She recalled the Society looking into after school programs for the Child as well.

38TN testified on behalf of the Society. She supervised the workers involved with the Applicant and his family and had direct involvement with them from December 2021 until March of 2022. She testified that there was no discussion prior to February 3, 2022 about salary replacement. It was considered at that point only because the hospital was discharging the Child that day. She said she made it clear to the Applicant that this financial support was “exceptional”, short-term, and would be assessed every 2 weeks. The Society continued an ongoing conversation and offered alternative supports to the family after YT was discharged home including after school respite. She believes it was clear that the financial support was only “for a few weeks” and noted that in her contact notes.

39TN testified that the reason the Society terminated the salary replacement payments to the Applicant was because it does not get funding for families parenting children with developmental needs. “We try our best to meet families where they are but this is not the norm. It is quite exceptional.” The Society was acting in a crisis situation. It required no documentation. It did the math based on the Applicant’s hours and wages from both of his jobs and offered this just to meet his immediate needs while continuing to look for alternatives. She added that it became very difficult to reach the Applicant after March 4, 2022, when he was advised that the financial support would stop. Prior to that, the Applicant had had a very positive working relationship with Society workers and almost daily contact, especially around the February 3^rd, 2022 discharge date. The file is now closed as there are no ongoing child protection concerns and there was a very positive outcome. YT is placed and getting the supports he needs.

40The Applicant indicated at the conclusion of the hearing that, in his view, this was a preventable problem. He felt he deserved a proper explanation of the time frame and what was happening. He wants nothing further from the Society except to be assured that it has learned from his case and how it might prevent a similar misunderstanding in the future. He believes there should have been “paperwork” with clear timelines and termination dates. He agrees with the end result and believes that the Society supported him and his family in achieving that.

41In my view, based on the evidence, the Applicant’s concerns are valid. I find that he was not given sufficient explanation of the Society’s intentions as to how the salary replacement payments were to be reviewed or on what basis they would be terminated. While the outcome may have been the same and the Applicant may still have been unsatisfied, his concerns are valid. Greater care and attention was needed in the information given to him both when the payments were approved and when they were terminated. As noted above in JG v Windsor Essex Children’s Aid Society, “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.” (emphasis mine).

Issue 2 The Applicant alleges he was not heard regarding his request for ongoing financial support until Y’s placement;

42The Applicant testified that the termination of financial support was unexpected and done without any warning. When he asked for it to be extended until YT’s residential placement became available, he was told that the decision was final.

43The evidence from the Society, not disputed by the Applicant, was that he became unresponsive after the March 4, 2022, notice was given, even though a further payment was made in mid-March. By that time, according to his own evidence, the Applicant had received approval from his employer to return to work half-time which would keep him available at home when YT was not in school. He also confirmed that the Society continued to offer alternative supports, some of which he agreed to and others were declined, right up to the point when YT was admitted to Lumenus.

44At the outset of the hearing, Society counsel acknowledged that the Applicant had, in fact, filed an ICRP application, a fact which the Society had initially denied. The Society conceded that the complaint was made and had been inadvertently lost in its system. She apologized for that error and offered to convene an ICRP if the Applicant still wanted the opportunity to speak with the Society about his experience. The Applicant said he is not interested in an ICRP as he is “back to work and things are back to normal.”

45I find, based on the evidence, that the Applicant’s communication with the Society throughout his involvement was open, responsive and positive, and that he was given sufficient opportunity to be heard regarding his concern about the termination of funding. He did not get the response he wanted but he was not denied the opportunity to be heard. Documentary evidence filed by the Society supports this conclusion and the difficulty it had reaching him after March 4, 2022.

Issue #3 The Applicant alleges he was not informed by Respondent staff of the timeframe of the placement of the child

46According to the Applicant’s evidence, the referral to Lumenus for residential placement for YT was made by CLT in 2021. By the time the intake process was completed, the Child had been admitted to hospital. Starting in January, the hospital was pressing for the Child’s discharge. He knew that it would be up to Lumenus when YT could be admitted. The Society assured him it would advocate for an early placement date. “They told me they would advocate but they did nothing.”

47The Society’s evidence on this issue was that Intake Branch Director B.G. reached out directly to Lumenus officials to advocate on behalf of the family. He reportedly stressed that the family was in crisis and asked Lumenus to accelerate the Child’s admission date. There was no documentary support for the Society’s assertion in this regard, nor is there any evidence as to whether this outreach by the Branch Director made any difference, but I accept that the effort was made. The Child was admitted to Lumenus on May 3, 2022 and remained there at the time of the hearing.

48I find that the society was not in control of when the Child would be admitted to Lumenus. Society staff were not in any better position than the Applicant or his CLT worker to inform him of the timeframe of the Child’s placement. This aspect of the Applicant’s complaint is dismissed.

DECISION

49Regarding Issue 1, I find that the Society failed to provide the Applicant with satisfactory reasons for its decisions regarding the salary replacement payments. The Society was never clear with the Applicant as to how the payments were to be calculated, how long the payments would continue, what would be the nature of the bi-weekly “review”, or when and how these payments would end. The test in J.W. v. Windsor Essex CAS (cited above) has not been met. The Applicant was not given sufficient information regarding the factors taken into account by the Society to allow him to understand why and how each of these decisions was made.

50Regarding Issue 2, I conclude that the Applicant was given the opportunity to be heard when he raised his service concerns. The Society was not able to engage more fully with him regarding termination of the temporary salary replacement because he elected to distance himself after he was told the decision was final.

51Issue 3 is dismissed.

ORDER

52My remedial powers in this matter are restricted to those options in section 120(7) of the CYFSA as specifically set out at paragraph 20 above.

53Within 30 days, the Society shall provide a letter to the Applicant containing a clear explanation and detailed reasons for the following:

a. What factors did it consider in reaching the decision to offer to pay income supplements to the Applicant and his family?

b. How did it calculate the amount of the salary replacement payments?

c. How was the bi-weekly review conducted?

d. What specific factors did the Society consider in the bi-weekly reviews?

e. How often did the Society meet to review the payments and who was in attendance at said reviews?

f. Was there any consideration given to involving the Applicant and/or his CLT advocate in the bi-weekly reviews? If not, why not?

g. What specific factors did the Society consider when it made the decision to terminate these payments?

h. What consideration was given by the Society to establishing a specific timetable or contract for the payments so all parties would know what to expect and when the payments would cease?

Confidentiality Order

65Pursuant to Rules 9.3 and 9.4 of the CFSRB’s Rules of Procedure, parties and their representatives must not use, share, discuss or disclose any CFSRB documents or decisions or any other documents or information provided or used in this Application with anyone, including through the media or online. The CFSRB prohibits the use of any of this information for any purpose outside of the CFSRB’s proceedings, except with an order of the Court or the CFSRB, as appropriate.