R.D.J. & M.D.J. v. Children’s Aid Society of Oxford County, 2008 CFSRB 86

CHILD AND FAMILY SERVICES REVIEW BOARD

R.D.J. & M.D.J.

v.

Children’s Aid Society of Oxford County

REASONS FOR DECISION ON MERITS

Date: September 2, 2008

Citation: 2008 CFSRB 86

Indexed as: R.D.J. & M.D.J. v. CAS of Oxford County (CFSA s. 68)

Related Decision: Reasons for Decision on Jurisdiction - R.D.J. & M.D.J. v. CAS of Oxford County (CFSA 68), 2008 CFSRB 62

1This is an application by R.D.J. and M.D.J. (the “Applicants”) under section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The Child and Family Services Review Board (the “Board”) was asked to review complaints made by the Applicants about the Children’s Aid Society of Oxford County (the “Society”). A jurisdiction hearing took place before this Board on June 4, 2008 and the Board determined that there was jurisdiction to proceed with six of the eleven complaints put forward by the Applicants.

2The Applicants specifically complained that the Society failed to proceed with their written complaint dated the […] day of September, 2007 as required by regulation. As well, the Applicants generally complain that they were not given the opportunity to be heard or to obtain reasons in respect of decisions made by the Society that affected their interests. The six issues raised in the complaint which the Board has jurisdiction to hear are as follows:

1. The complaint that the Society failed to respond to the written complaint made by the Applicants on September […], 2007.

2. The complaint that a Society worker was rude to the Applicants when replying to questions.

3. The complaint that the Society changed the location of access visits and the level of monitoring during the visits.

4. The complaint that a Society worker failed to arrange a follow-up meeting or joint session to obtain a progress report for the Applicants in respect of therapy for the children.

5. The complaint that the Society ignored attempts made by the Applicants to improve themselves.

6. The complaint that the Society did not provide reasons to the Applicants in respect of its failure to implement home visits in October, 2006.

3The Board at this hearing must review the Applicants’ allegations that:

a. the Society failed to proceed with the Applicants’ complaint as required under section 68(2) of the Act;

b. the Society failed to comply with clause 2(2)(a) of the Act; and

c. the Society failed to provide the Applicants with reasons for a decision which affects the Applicants’ interests.

BACKGROUND

4The Society became involved with this family when the eight youngest children of the family were apprehended by the Society on the […] day of February, 2006. These children have not resided with the Applicants from that time to the present. On August […], 2006, the children were found to be in need of protection and there is a Status Review proceeding currently before the Court with a trial scheduled for September […],[…],[…] and […], 2008. It is the position of the Society that all eight children should be made Crown Wards. The Applicants are opposed to that disposition and wish to have the children returned to live with them. There are four older children who are not involved in the application because they are older and outside the mandate of the Society.

ANALYSIS

5The Board heard evidence from both Applicants and from the Society and makes the following determination in respect of the six complaints.

Issue No. 1: The complaint that the Society failed to respond to the written complaint made by the Applicants on September […], 2007

6The Board must determine if the Society failed to proceed with the Applicants’ complaint as required under section 68(2) of the Act, which reads as follows:

68(2) Complaint review procedure

Where a Society receives a complaint under subsection (1) it shall deal with the complaint in accordance with the complaint review procedure established by regulations, subject to subsection 68.1(2).

7The Applicants had concerns with respect to services sought and received from the Society and with respect to the legal representation of the children through the Office of the Children’s Lawyer. They drafted one letter of complaint to address all of these concerns. Sometime after September […], 2007 (perhaps as late as the end of October), this complaint letter was delivered to the Society setting out all of these concerns and this letter was directed to the attention of the Executive Director of the Society, C.S.. Delivery of this letter to the Society resulted in a meeting between the Applicants and a Society Manager, C.W..

8It is the evidence of the Applicants that they were promised a response in writing after the meeting and that such a response never arrived. The Applicants followed up with the case worker, L.L., and in the absence of any response from the Society for over four months brought this application on March […], 2008.

9The Society takes the position that the letter of September […], 2007 was not a complaint to the Society. The Board disagrees with that position and finds that in fact the letter of September […], 2007 was a complaint to the Society in several respects.

10The Board further finds that the Society did not address this complaint in accordance with section 68(2) of the Act and the internal complaint procedure which is set out in Regulation 494/06 (the “Regulation”).

11This Regulation requires the Society to determine whether the complaint is eligible for review under section 68 of the Act within seven days after receiving the complaint. Section 7 of the Regulation requires the Society to notify the complainant in writing if the complaint is eligible and to establish an Internal Complaints Review Panel (the “ICRP”). The relevant sections of this Regulation are set out below.

O. Reg. 494/06

Eligibility for review

3. Within seven days after receiving a complaint, the society shall determine whether the complaint is eligible for review under section 68 of the Act.

Notice if not eligible for review

4. If the complaint is not eligible for review, the society shall notify the complainant of its decision and the reasons for it in writing.

Notice if eligible for review

5.(1) If the complaint is eligible for review, the society shall notify the complainant in writing and shall establish an Internal Complaints Review Panel.

5.(2) The notice shall provide the complainant with a date and time for meeting with the ICRP.

12It is the decision of the Board that the Applicants are entitled to have their complaint dealt with through the internal complaint review process of the Society forthwith since this was the process that should have been made available to the Applicants at the time the written complaint was submitted to the Society and the process which the Applicants were entitled to engage by law. There is no other relief which would be appropriate under the circumstances other than to afford the Applicants the opportunity that they were denied when their letter of September […], 2007, directed to the attention of the Executive Director of the Society, C.S., was not dealt with by the Society as a complaint.

Issue No. 2: The complaint that a Society worker was rude to the Applicants when replying to questions

13The Board must determine if the Society failed to listen to the Applicants’ concern that the worker was rude to them.

14The Applicants in their evidence gave five specific examples of what they considered to be rude comments made by the case worker, L.L.. The allegations of rudeness can be summarized as follows:

i) the comment made in response to health concerns mentioned in respect of M.D.J. that “you get used to it”.

ii) The comment made by L.L. when she was angry to the effect that “she will add twelve months to the Court Order”.

iii) The emphatic “No” statement made by L.L. at a Settlement Conference in respect to the request that the children come home.

iv) A comment by L.L. to the Applicants after a Court appearance to the effect of “get out of this room” when L.L. was questioned by the Applicants as to whether she felt guilty.

v) The comment by L.L. to M.D.J. that “you must have lots of time now” in reference to the children being absent from the home.

15L.L. did not attend to give evidence to refute the allegations of rudeness. An Affidavit of L.L. sworn the […] day of July, 2008 was entered as Exhibit R-1 for identification and had limited evidentiary value. The Board did rely upon some casenotes attached to the affidavit since these notes are in the nature of business records and were also referred to by the Applicants in their evidence. The Applicants did not provide any evidence to the Board that their concern with respect to rudeness by L.L. was ever made to the Society.

16For the Board to make a finding in respect of these allegations of rudeness, they must arise in the context of the provision of section 2(2)(a) of the Act which provides 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.

17In this case, there is no evidence that the rudeness concerns were brought to the attention of the Society by the Applicants and, accordingly, there is no basis upon which this Board can find that the Applicants did not have an opportunity to be heard. Therefore, this complaint must be dismissed.

Issue No. 3: The complaint that the Society changed the location of access visits and the level of monitoring during the visits

18The Board must determine if the Society failed to give the Applicants the reasons for changing the location and level of supervision of access visits and gave them an opportunity to be heard with respect to their concerns about this change.

19After the children were apprehended, access visits were arranged initially through the kinship placements. However, this was changed in or around May 2006 to the Society’s offices in T. where the visits were supervised by one person. It is the Applicants’ evidence that these visits were relaxed. Towards the end of 2006, these visits were changed to the Society’s offices in W.. In this location, the visits occurred in an observation room, where the Applicants believe they were being both video and audio taped. It is the Applicants’ position that the Society did not provide them with any reasons for this change and did not listen to their concerns about this change.

20With respect to this complaint, although the Applicants gave evidence that no reasons were ever provided for this change, the Applicants acknowledged in cross-examination that in fact they had received explanations for the change in access from T. to W. and in respect of the level of monitoring which was in place for these visits. The Applicants had the opportunity to discuss these concerns with L.L. and confirmed that she was available to them in this regard. It was clear that the Applicants disagreed with the access changes, but the evidence clearly indicates that the Applicants had an opportunity to be heard in respect of these concerns and were given reasons for these decisions by the Society. The case note contained at page fifty-three in support of the Affidavit of L.L. sworn the […] day of July, 2008 (Exhibit R-1) contains a specific reference to a discussion of these access changes and the related reasons.

21It was the evidence of R.D.J. that although the Society may have spoken to the Applicants about these access concerns they always had an “ulterior motive” and when the Society spoke to them it was “a farce”. The Society also presented evidence from N.L., a case worker assisting L.L., that L.L. made great efforts to explain these and other matters to the Applicants and that the Applicants had the opportunity to ask questions which would then be answered by L.L..

22The Board finds that the Society did give the Applicants reasons for changing the location of access and the level of supervision and gave the Applicants an opportunity to be heard when they had concerns about the services they were receiving. As such, the Board dismisses this complaint.

Issue No. 4: The complaint that a Society worker failed to arrange a follow-up meeting or joint session to obtain a progress report for the Applicants in respect of therapy for the children

23The children, after they were apprehended by the Society, were receiving therapy from A.T., a Child Psychologist, who was retained by the Society. The Applicants allege that the Society had stated that a follow-up meeting or joint therapeutic session would be arranged and that they could participate for the last three of the children’s therapy sessions, but that this never occurred. The Board must determine if the Society failed to provide the Applicants with reasons for not arranging the above. The Applicants also expressed some concern that they received progress reports from Ms. A.T. without first having had the opportunity to participate in joint sessions with the children.

24With respect to this complaint, the Applicants acknowledged in their evidence that this promise was not made to them by L.L., but was made to them by A.T.. A.T. is not a Society employee. She is an outside service provider for the Society. The evidence is also consistent that a meeting was held between the Applicants, L.L. and A.T. on December […], 2006 at the Society office and this meeting is referenced in paragraph 83 of the Affidavit of L.L. sworn July […], 2008. Extensive notes of this meeting (transcribed) are contained at pages 44 – 51 in the Affidavit supporting materials (Exhibit R-1). The Board notes that there is no mention of any future meeting or joint session in these notes, The notes demonstrate that the Applicants were provided with considerable information by the therapist during the meeting of December […], 2006. The Board finds on the evidence that if any promises were made to the Applicants they were not made by L.L. and, accordingly, are beyond the jurisdiction of this Board.

25For the reasons given above, the Board dismisses this complaint.

Issue No. 5: The complaint that the Society ignored attempts made by the Applicants to improve themselves

26The Applicants allege that although they participated in and completed the programs suggested by the Society, the Society did not view these efforts as being adequate. The Board therefore must determine if the Society failed to provide the Applicants with reasons for the decision to not consider their actions as sufficient.

27In giving their evidence, the Applicants acknowledged that L.L. did explain “things” to them and also listened to their concerns. The Applicants had the opportunity to communicate their efforts to improve themselves with the caseworker and in the Court in Plans of Care (as required from time to time in that proceeding). It was clear on the evidence that the Applicants have continued throughout their dealings with the Society to insist on counseling or other intervention other than that recommended by the Society. Paragraphs 87 to 95 of the Affidavit of L.L. sworn the […] day of July, 2008 detail various recommendations made by the Society to the Applicants and the response given by the Applicants. The evidence demonstrates that the Society was aware of efforts made by the Applicants to improve themselves and took the position that these efforts were not sufficient or not as recommended by the Society and various professionals involved with the family.

28The Applicants gave evidence with respect to books read by M.D.J. to improve her parenting, with respect to engaging in the STEP program (parenting training) and the MARC program for R.D.J., attending sessions with M.M., a Clinical Interventionalist Specialist, and then for a parenting capacity assessment with M.S.. The Applicants further indicated that they had put forward a plan to have counselling provided through their church (and otherwise with P.E.E.R. Counselling Services) and also that arrangements had been made with the church to provide in-home support to assist with the children after school and at bedtime. All of the above was part of the Plan of Care being put forward by the parents and, in the final analysis, an issue to be determined by the Court.

29The Board finds that the Society heard the Applicants in respect of the efforts the Applicants were making to improve themselves and that the Society provided the Applicants with reasons when these efforts were not seen by the Society as being sufficient. This complaint is therefore dismissed.

Issue No. 6: The complaint that the Society did not provide reasons to the Applicants in respect of its failure to implement home visits in October, 2006

30It was the evidence of the Applicants that C.C., Society Manager of Family Services, was in favour of home visits to begin in October of 2006 and that C.C. had told the Applicants and church representatives that this was a way to bring the family back together again. It was the evidence of the Applicants that home visits never took place and that no reason was ever given by the Society for this change. No evidence was tendered in response by the Society in respect of this allegation. The Board finds on the evidence that the Society failed to provide the Applicants with reasons for not implementing the home visits as promised by Ms. C.C.. Accordingly, the Board directs the Society to provide written reasons to the Applicants in respect of the failure to implement home visits in October of 2006.

DECISION

31For the reasons set out above, the following is the Board disposition in this proceeding:

1. The Application is successful in respect of Issue No. 1. It is the order of the Board pursuant to subsection 7 of section 68.1 that the Society comply with the complaint review procedure established by Regulation and proceed with the complaints made by the Applicants by letter dated the […] day of September, 2007 in accordance with the Society’s internal complaint review procedure.

2. Issues 2, 3, 4 and 5 are dismissed for the reasons given above.

3. Issue 6 is allowed and it is ordered pursuant to subsection 7(d) of section 68.1, that the Society provide written reasons to the Applicants in respect of the failure to implement home visits in October of 2006. These reasons are to be detailed and are to be provided to the Applicants, with a copy to this Board, on or before September 22, 2008.

32In order to fully understand the Board’s decision in this matter, it is important to distinguish the Board’s hearing process from the ICRP process because, at first glance, it appears that both bodies will have heard the same complaints. The complaint review procedure under Regulation 494/06 is a different process and has a different purpose from the Board process and the purpose of this hearing. The Board focus is an adjudicative one in order to determine whether the legislative requirements under section 68.1 have been met. The Board did not conduct a review into the merits of the Applicants’ concerns which were set out in their September […], 2007 letter of complaint to the Society. The internal complaint review procedure conducted by the Society has the potential to address the Applicants’ concerns more extensively.

33The Board shall remain seized of these matters pending compliance with the Orders made herein.

Gail Gonda

Presiding Member

Gregory Price

Panel Member

Denyse Diaz

Panel Member