M.H. v. Children’s Aid Society of Toronto, 2009 CFSRB 60

CHILD AND FAMILY SERVICES REVIEW BOARD

M.H.

v.

Children’s Aid Society of Toronto

REASONS FOR DECISION ON MERITS

Date: October 20, 2009

Citation: 2009 CFSRB 60

Indexed as: M.H. v. CAS of Toronto (CFSA s.68)

Related Decision: Reasons for Decision on Jurisdiction - M.H. v. CAS of Toronto (CFSA s.68), 2009 CFSRB 41

1This is an application by M.H. (the “Applicant”) under section 68.1 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”). The Applicant is asking the Child and Family Services Review Board (the “Board”) to review complaints made by the Applicant about the Children’s Aid Society of Toronto (the “Society”). A jurisdiction hearing took place on July 27, 2009 and an oral decision was given at the conclusion that day followed by a written jurisdiction decision dated August 5, 2009. The Board determined that there was jurisdiction to proceed to an oral hearing on the following complaints:

The Applicant believes that the Society has not heard his concerns about the care his children have received while in foster care from July 2008 to May […], 2009, the date of his application to the Board. These concerns are set out below:

1. The Applicant is concerned that his son and daughter are in the same foster home. The Applicant believes that his children have an inappropriate relationship with each other and should not be in the same home;

2. The Applicant is concerned that he was not involved with his children’s Plan of Care when they were apprehended in July 2008;

3. The Applicant is concerned about the care his son is receiving in foster care. For example, his son ran away from the foster home, has not received an allowance and has had behavioural issues while in care.

2On September 4, 2009 and October 9, 2009, the Board conducted an oral hearing of the application involving these complaints against the Society. On September 4, 2009, the Applicant presented his case which consisted of his testimony, oral evidence from L.W. and various documents. The Society was unable to respond on this day because the key witness for the Society, the Children’s Service worker, P.D., had been hospitalized and was unable to attend. The hearing continued on October 9, 2009 and the Society presented its evidence. P.D. was still unavailable for medical reasons and to avoid delay, the Society proceeded with oral evidence from the Family Service worker, D.T., and relied upon various documents. Submissions were then made by the Applicant and Respondent.

3For reasons that follow, the Board finds on the basis of the evidence tendered by the parties at the hearing that the complaint made by the Applicant that he has not been heard by the Society has been made out on a balance of probabilities with respect to the second issue and in part on the third issue. The first complaint made by the Applicant is dismissed.

BACKGROUND

4The Applicant is a parent of K.Y., born August […], 1993, and O.Y., born October […], 1992. On July […], 2008, both children were apprehended by the Society and placed in an emergency foster home as a result of allegations made by O.Y.. The Toronto Police Service laid criminal charges against the Applicant as a result of these disclosures which have not yet come to trial. Both children have remained in the foster home since July […], 2008. O.Y. was recently made a Crown Ward without access and the Applicant’s rights as a parent and the corresponding obligations of the Society to the Applicant vis-à-vis O.Y. ended when this Order was made. There is a motion before the Court on October […], 2009 in respect of K.Y. where the Society is seeking Crown Wardship with access. The Applicant made this application to the Board on May 19, 2009 and the complaint was subsequently determined to be eligible by the Board pursuant to section 68.1(4)4 and section 68.1(4)5 of the Act. The relevant legislative provisions read as follows:

s. 68.1(4) The following matters may be reviewed by the Board under this section:

s. 68.1(4)4 Allegations that the society has failed to comply with clause 2(2)(a).

s.68.1(4)5 Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

s.2(2)(a)

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.

MOTION BY APPLICANT ON OCTOBER 9, 2009

5At the continuation of the oral hearing on October 9, 2009, and before the Society presented any evidence, the Applicant made an oral motion to the Board for permission to tape record the proceedings. The Applicant brought a recording device with him to the hearing room because he believed a record of the Society evidence would be helpful to him in the court protection proceeding that was ongoing. The Society objected to this proceeding being recorded by the Respondent, primarily on the basis that there would be no useful purpose in so doing.

6The Board Rules of Procedure provide as follows:

29. Due to the nature of the proceedings, hearings and pre-hearings are to be held in private.

30. A party or a member of the public may bring a motion to have a hearing held in public. This rule does not apply to ESTA.

7The Board considered the submissions made by both parties and decided that the Applicant would not be permitted to record the proceedings for the following reasons:

A. Any request to record the proceedings should be made at the start of the oral hearing and not in the middle after the Applicant had closed his case. To permit a recording of the hearing at this point in time would unfairly deprive the Society of the opportunity to have obtained a recording of the evidence tendered by the Applicant on September 4, 2009.

B. To avoid issues with respect to completeness and accuracy, the Board would only permit a hearing to be recorded by a certified court reporter and then only on the basis of an Order or undertaking that any transcript ordered would be provided to the other party and to the Board at the expense of the person requesting a transcript of the hearing.

C. Since complaint hearings under s. 68.1 are to be held in private and involve very personal considerations about any given family, it is the view of the Board panel that a tape recording of the evidence should rarely, if ever, be permitted. The Board is mindful that often the evidence involves sensitive considerations about children and the risk of improper disclosure of this information would increase substantially if parties are allowed to record the proceedings.

8For the reasons noted above, the Board denied the request by the Applicant to tape record the balance of the hearing.

ANALYSIS

9The Applicant complained that the Society has not heard his concerns about the care his children have been receiving since they were apprehended in July 2008. The three specific concerns are addressed separately as follows.

Issue 1:

The Applicant believes that his son and daughter have an inappropriate relationship with each other and should not be placed in the same foster home.

10In a letter dated January […], 2009 to the Society, B.B., counsel for the Applicant, outlined the Applicant’s concerns for his children. He advised the Society that the Applicant believes that there has been sexual activity between his son (“K.Y.”) and daughter (“O.Y.”) while they were in the Applicant’s home and believes that this may be continuing in the foster home. The Applicant also believes that his daughter has been bringing her friends home and that they have been offering sex to his son. Mr. B.B. asked for an investigation into this matter on behalf of the Applicant.

11The Society entered paragraphs 21- 34 of the May […], 2009 Affidavit of P.D. as evidence. P.D., the Children’s Service Worker on this file, conducted the investigation into this matter and related the following steps of the investigation in her Affidavit. On January […], 2009, she consulted with PC M. of the Toronto Police Services 54 Division and they agreed that she would interview K.Y. and O.Y. and then they would determine how to proceed. On the same day, she interviewed each child privately and then interviewed them together. Both children denied any sexual involvement. She found no evidence that K.Y. and O.Y. were involved in any sexual activity.

12The Society sent a letter to the Applicant through legal counsel on February […], 2009 informing him that both children had been interviewed privately and that the Society was not able to substantiate the concern that there was sexual activity between them. The Society also informed him that they did not find any merit to his concern that O.Y. was bringing friends home in order to offer sex to K.Y..

13The Board finds that the Society heard the Applicant’s concern about the alleged sexual activity of his children and conducted an investigation into the matter. The Society contacted the police according to their protocol and met with each child separately. The Society also advised the Applicant in writing of the result of this investigation and gave him an explanation for their decision. For these reasons, the Board dismisses this complaint.

Issue 2:

The Applicant is concerned that he was not involved with his children’s Plan of Care when they were apprehended in July 2008.

14The Applicant complained that his children were apprehended on July […], 2008 and he was not involved with their Plan of Care. He was not invited to the first Plan of Care meeting in July of 2008, nor was he told what took place. He felt that he had valuable information about his children and he was deprived of the opportunity to provide input and to express his concerns. Further, he was not provided with a copy of the Plan of Care. The Applicant stated that in November 2008, P.D. admitted to him that it was a mistake on the Society’s part not to include him and invited him to a December meeting for his son. He did not attend because he was very emotional and upset at the time.

15D.T. stated that the Applicant was not invited to the July 2008 meeting because the bail conditions imposed on him provided that he have no direct or indirect contact with O.Y.. For the December meeting, the Society decided to separate the meeting for O.Y. and K.Y. and invited the Applicant to attend the meeting for K.Y.. O.Y. would leave before the arrival of the Applicant.

16Ms. D.T. stated that the purpose of a Plan of Care meeting is to identify the services needed, tell the parent how the children are doing in care and provide them with information on the children’s current condition. In addition, the parent can provide input to the Society and give information on how the children were before the apprehension. Ms. D.T. could not give a reason as to why the Applicant was not included in planning for the children in the first four months after the apprehension.

17The Board’s view is that the Applicant should have been given the opportunity to participate in the meeting of July 2008. If the bail conditions prevented him from attending with O.Y. present, the Society could have provided information and obtained input from the Applicant without the child being present and some accommodation for the Applicant should have been made. The Board finds that the Society did not hear the Applicant’s concerns regarding his involvement with his children’s plan of care. However, the Board does not make any further order since no order of this Board can remedy this default.

Issue 3:

The Applicant is concerned about the care his son is receiving in foster care. For example, his son had access to pornography, ran away from the foster home, has not received an allowance and has had behavioral issues while in care.

18The Applicant complained of a number of incidents involving his son while he was in foster care which are as follows:

i. His son had access to pornographic movies;

ii. There was constant conflict between the foster mother and his son;

iii. His son was suspended from school for an altercation.

i. His son had access to pornographic movies.

19The Applicant became aware that his son rented two pornographic movies while at the foster home. In the letter dated January […], 2009 to the Society, B.B., counsel for the Applicant, also advised that the Applicant was concerned that his son had access to pornographic movies in the foster home and requested that the Society investigate this matter.

20The evidence of Ms. D.T. was that P.D. had advised her of the incident and that K.Y. was appropriately reprimanded for his actions and strategies were implemented with the foster mother to prevent this from happening again. The foster mother was not aware that K.Y. had rented the movie until she received her cable bill, at which point the foster mother put restrictions on the cable account to prevent the children in the home from accessing pornography. After consultation with the Society, it was decided that K.Y. had to reimburse his foster mother for this expense. Ms. D.T. further attested that the manner in which the Society addressed this issue was not communicated to the Applicant.

21The Board finds that the Society did not communicate with the Applicant in respect of his concern about his son’s access to pornography at the foster home and determines that the Applicant was not heard in this regard. During the hearing, the Applicant was made aware of the action that the Society took regarding this issue and the Board finds that an order is not necessary.

ii. There was constant conflict between the foster mother and his son.

22The Applicant gave evidence that his son informed him that he got into a verbal argument with his foster mother and he punched a hole in the wall. He also indicated that the Society had not given his son allowance for three months and that his son had no money. The Applicant further noted that his son had run away from the foster home and that the foster mother had taken away his son’s house keys.

23D.T. confirmed that the first incident occurred although she was unaware of why K.Y. was upset and damaged the wall. The plan implemented was that K.Y. would pay the foster mother for the repair of the hole and as a result, he did not get his allowance. Ms. D.T. stated that this incident and the resulting solution were not communicated or discussed with the Applicant.

24In regards to the issue of K.Y. running away from home, Ms. D.T. said that K.Y. was only missing for the day. He had come into Toronto to meet up with some friends and was not missing overnight. K.Y.’s privileges were taken away as a result of this incident.

25The Applicant stated that he called P.D. to express a concern that K.Y.’s keys were taken away and was provided an explanation related to inappropriate activities at the foster home.

26The Board’s view is that the Society addressed these issues with the foster mother and K.Y.. There was no evidence that the Society communicated to the Applicant how they addressed these issues. D.T., the Family Service Worker, did not contact the Applicant on a regular basis to address his concerns and to keep him informed of K.Y.’s progress, as one might expect having regard to her role.

27With respect to the above incidents the Board finds that the Applicant had not been heard by the Society. During the hearing, the Applicant was made aware of the action that the Society took regarding this issue and the Board finds that an order on this matter is not necessary.

iii. His son was suspended from school for an altercation.

28It came to the attention of the Applicant that towards the end of the last academic year, his son was suspended after an altercation with another student.

29In regards to the issue of the suspension from school, Ms. D.T. sent a letter dated June […], 2009 to the Applicant informing him of the incident which lead to K.Y.’s suspension from school. She asked him to contact her if he had any further questions. Ms. D.T. said that the Applicant did not contact her about this incident.

30The Board finds that the Applicant was heard in regard to this issue.

CONCLUSION

[31] In summary and for the reasons set out above, the Board finds as follows:

1. The first complaint regarding the concern about the children being in the same foster home (inappropriate relationship) is dismissed.

2. The second complaint being the concern that the Applicant was not involved with the Plan of Care for the children when they were apprehended in July of 2008 is decided in favor of the Applicant. The Board determines that the Applicant was not heard by the Society at the relevant time when important decisions were being made.

3. The third complaint being concerns about the care K.Y. was receiving in foster care is decided in part in favor of the Applicant. The Board determines that the Applicant was not heard by the Society with respect to the following:

i. the access K.Y. had to pornography in the foster home;

ii. the constant conflict between the foster mother and child (hole in the wall, allowance suspension, running away and no house keys)

The Board did not find in favor of the Applicant with respect to the concern in (iii) by the Applicant about K.Y. being suspended from school.

32Subparagraph 7 of s.68.1 of the Act lists the remedies available after review of a complaint. None of the prescribed remedies are of any practical benefit to this Applicant since he has now received reasons for decisions made by the Society through this process and is left with a determination by this Board that in several respects the Society has not complied with s. 2(2)(a) of the Act.

Gregory Price

Presiding Member

Mary Wong

Panel Member

Denyse Diaz

Panel Member