E.G. v. Children’s Aid Society of Simcoe County, 2009 CFSRB 79

CHILD AND FAMILY SERVICES REVIEW BOARD

E.G.

v.

Children’s Aid Society of Simcoe County

REASONS FOR DECISION ON JURISDICTION & MERITS

Date: December 29, 2009

Citation: 2009 CFSRB 79

Indexed as: E.G. v. CAS of Simcoe County (CFSA s.68)

INTRODUCTION

1Ms. E.G. filed an application with the Child and Family Services Review Board (the “Board”) on September 22, 2009 under section 68.1(4) 4 and 5 of the Child and Family Services Act R.S.O. 1990, c. C.11 (the “Act”) against the Children’s Aid Society of Simcoe County (the “Society”) because she felt that the Society had not listened to her concerns as required by section 2(2)(a) of the Act and had not provided her with reasons for decisions that affected her interests. At a pre-hearing conference on November 25, 2009, Ms. E.G. confirmed that her complaint related to the Society’s involvement with her and her son, and specifically that the Society had not:

1. Provided her with reasons why the Society worker came to her home and failed to inform her that the Society was going to issue an apprehension warrant.
2. Given her reasons why the Society took her son and why he was not returned to her care.
3. Given her reasons why she was not notified when her son fled from the foster home and hitchhiked from [City A] to [City B].
4. Given her reasons why the Society failed to listen to any of her and her son’s needs or her concerns.
5. Heard her concerns about workers and request for a new worker.
6. Heard her concerns or explained why no supports were put in place for her son to attend summer school and the first semester for grade 9 of this school year.
7. Heard her concerns regarding her son being placed in a group home.
8. Given her an opportunity to be heard or heard her concerns relating to new allegations made against her that the Society did not inform her about.
9. Heard her concerns about the worker who is not familiar with what supports are available in the community for her and her son and what are the appropriate service needs for them.

2A hearing into this matter was held in Barrie, Ontario on December 15, 2009. The issue before the Board is whether Society staff heard the Applicant and provided her with reasons for decisions relating to the concerns that she raised about her son.

PRELIMINARY ISSUES

3The Society raised the issue of the Board’s jurisdiction over the complaint. The Society submitted a summary reply to the Board on September 23, 2009 and stated that its position was that the Applicant’s complaint was ineligible for review by the Board since the matters under complaint were before the Court.

4On October 27, 2009, the Board notified the parties that a Pre-hearing and Settlement Facilitation Conference would be held on November 4, 2009. The Society wrote to the Board on October 29, 2009 to inform the Board that it would not be participating in the conference scheduled for November 4, 2009 since the matters under complaint were before the Court. On November 18, 2009, the Board notified both parties of a pre-hearing teleconference to be held on November 25, 2009. On November 19, the Society informed the Board by letter that it would not be participating in the pre-hearing teleconference.

5A pre-hearing teleconference was held on November 25, 2009 in which the Society did not participate. The Board notified both parties by Notice of Hearing dated November 30, 2009 that a hearing would take place on December 15, 2009. The Society did not participate in the hearing and the Board did not hear an oral motion or argument from the Society on jurisdiction.

6During the hearing, the Board gave the Applicant an opportunity to present her argument regarding whether the Board had jurisdiction to hear her complaints given the Society’s position as stated in its correspondence to the Board. The Applicant was not represented by counsel and argued that the issues are not before the Court. The Applicant proceeded to describe the details of her involvement with the Society which indicated the difficulties that she has had dealing with the Society and that she has not been given reasons for its decisions.

7In the absence of any evidence from the Society about what matters were before the Court, the Board determined that it has the jurisdiction to hear all of the Applicant’s complaints as they relate to the Applicant’s right to be heard and to be given reasons for decisions affecting her interests. The Board recognized that in the course of hearing testimony from the Applicant and her witness it might ultimately dismiss a complaint or complaints for reasons of jurisdiction but could not make such a determination without hearing the Applicant’s testimony and the testimony of her witness and relying upon any submissions of the Applicant.

8The Board finds that it does not have jurisdiction to deal with complaints numbered 1, 2, 6 and 7. The Board dismisses complaint numbered 8 and upholds complaints numbered 3, 5 and 9 for the reasons that follow.

BACKGROUND

9The Applicant is the mother of T., D.O.B. April […], 1995. The Applicant has been involved with the Society for a period of time and most recently as the result of an order on consent made in June, 2009 placing T. in her care subject to conditions. The Applicant’s complaints to the Board relate to her involvement with the Society over the last three years and more specifically since the time the details of the consent order were being developed. The more recent involvement between the Applicant and the Society came about as the result of T.’s behavior which began to escalate in February, 2009. This escalation coincided with a period of time during which the Applicant stopped taking medication to treat depression and began to set rules and expectations for T.. During this time, the Applicant was concerned about T.’s friends, deterioration in his school work and unsafe activities. The Applicant entered into an agreement with the Society in order to address her concerns and to ensure T.’s safety. The order on consent required T. to live with his mother among other conditions. In late July 2009 T. left his mother’s care as the result of an argument with her. T. went to a friend’s house for three days. T. was apprehended by the Society on July […], 2009 and placed in a foster home in [City A]. He ran away from the foster home on the following day and hitchhiked back to the Applicant’s home. On August […], 2009 the local police issued an apprehension warrant to the Applicant and T. was removed from the Applicant’s home and placed in a group home. T. ran away from the group home and lived on the street for a period of time. He is currently residing in a foster family but spends the majority of his time with his mother.

ANALYSIS

10At the hearing, the Applicant provided her testimony and called one witness, L.B., the Applicant’s mother. The Society was not present at the hearing.

The relevant legislative provisions for the Board to consider in this case are:

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 services they are receiving.

and section 68.1(4) which reads:

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

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.

11The onus is on the Applicant to establish her complaint on a balance of probabilities.

12The Board must determine whether or not the Society complied with the relevant provisions of the Act. If the Society is found to have complied with the requirements of the Act, then the Board must dismiss the complaint.

Complaint #1: The Society had not provided the Applicant with reasons why the Society worker came to her home and failed to inform her that the Society was going to issue an apprehension warrant.

Complaint #2: The Society had not given the Applicant reasons why the Society took her son and why he was not returned to her care.

Complaint #7: The Society had not heard the Applicant’s concerns about her son being placed in a group home.

13These three complaints are considered together since they deal with matters related to the apprehension of the Applicant’s son. The Applicant testified that LS, a Society worker came to her home on July […], 2009 looking for her son. The Applicant informed her that he was at a friend’s house. The worker informed the Applicant that her son was not there since she had just gone to the friend’s house and did not find T. there. The worker also informed the Applicant that she should know where her son was. The Applicant testified that the worker left and the police showed up shortly thereafter with a warrant of apprehension. The Applicant also stated that she believed the apprehension of her son to be related to false allegations made against her by her daughter who did not reside with the Applicant at the time.

14The apprehension occurred after the parties had entered into a court order, on consent. The consent order dated June […], 2009 was admitted as evidence by the Applicant. It was signed by Society counsel and the Applicant as well as the Applicant’s son. The order provided that T. was to remain in the care of his mother and was to abide by her rules including curfew times. The order stipulated as well that the Society had the right to make both scheduled and unscheduled visits. Furthermore, in the event of a breach of any of the conditions ordered, T. was to be placed in the care of the Society in [a Group Home] as a place of temporary detention. The Applicant agreed that she had entered into this agreement voluntarily despite the fact that she was not happy with some of the conditions that she agreed to and which were subsequently ordered. The Applicant had the opportunity at the time the terms of the order were being drafted to discuss them with the Society and before the court. The order outlines the parameters of the Society’s involvement related to attendance at the Applicant’s home and actions to be taken in the event of a breach of the order.

15The Board notes that the reasons for the Society’s actions with respect to these complaints are clearly based on the terms and conditions contained in the order on consent. In accordance with section 68.1(8) (a) of the Act, the Board does not have the jurisdiction to hear these matters since they were matters decided by the court.

Complaint #3: The Society did not give the Applicant reasons why she was not notified when her son fled from the foster home and hitch hiked from [City A] to [City B].

16The Applicant testified that after her son was apprehended and placed in a foster home on July […], 2009, he ran away the same evening and returned to her home. The Applicant stated that he was on the run for 6 hours and believes that she should have been notified by the Society, given the risks posed to her son. No evidence was provided to clarify whose responsibility it was to notify the Applicant under such circumstances. The decision not to notify the Applicant affected her interest in terms of the care and safety of her son. Since her son had been apprehended and was in the care of the Society, the Board believes that the Applicant has a right to know why she was not notified, including what notification procedures were in place during the time the Applicant’s son was in the Society’s care.

Complaint #4: The Society had not heard the Applicant’s concerns or given her reasons why the Society has failed to listen to any of her and her son’s needs or her concerns

17The Board did not hear any testimony that identified complaints that were different from those already identified and therefore does not consider this complaint as a separate complaint.

Complaint #5: The Society had not heard her concerns about workers and request for a new worker.

Complaint #9: The Society had not heard her concerns about the worker who is not familiar with what supports are available in the community for her and her son and what are the appropriate service needs for them.

18These complaints relate to the Applicant’s concerns regarding LS who was assigned to work with the Applicant in February 2009. The Applicant testified that she had complained about LS to her supervisor TJ on several occasions and nothing was done about changing workers despite the fact that in the past when she complained about a male worker the Society immediately assigned her a new worker. The Applicant cited an example of LS’s lack of knowledge of services. She stated that the Society had wanted her to participate in a community program to enhance her parenting skills. The Applicant stated that LS brought her an application to complete for admission into the program in question when it was LS’s responsibility to complete the application. Furthermore, the Applicant stated that she did not meet the criteria for admission into the specific program and should not have been referred in the first place. On another occasion, the Applicant requested support for transportation to attend meetings at the Society and LS said that she would put in a request for support but nothing happened. Furthermore, she had requested bus passes for her son and believed they were part of the order on consent but she was never given any passes. The witness, Ms. L.B. also testified that she was present at a meeting with the Applicant and TJ to discuss a new worker and TJ said that LS was one of the few workers under her supervision and that the Applicant would need to be placed under another supervisor if a new worker were to be assigned. According to the witness, this meeting took place following the meeting that took place on or about September […], 2009.

19The Board concludes that the Applicant’s concerns regarding the difficulties with the worker LS and the need for a change have not been heard since TJ did not address the difficulties the Applicant was having in working with LS nor was she been given reasons why a new worker could not be assigned in the interests of ensuring the successful achievement of the joint goals shared by the Applicant and the Society regarding the best interests of the Applicant’s son.

Complaint #6: The Society had not heard the Applicant’s concerns or explained why no supports were put in place for her son to attend summer school and the first semester for grade 9 of this school year.

20The Applicant testified that her son has special educational needs and, for the past four years, has had a one-to-one worker in the classroom, and attended school from 9 a.m. until noon. She stated that she had explained this to both LS and TJ on a number of occasions and they failed to take the history of his special needs into account or provide her with reasons why no supports were put into place for him to address these concerns. The order on consent had an original condition that her son was to attend school from 9 a.m. until 12:15 p.m. for the remainder of the school year. These hours were struck out and replaced with the hours 9 a.m. until 3:30 p.m. The Applicant indicated that she did not know who had struck out the original hours and inserted the longer hours. The same longer hours were included as part of the condition to attend summer school. The order also stipulated that the Society was to provide a bus card for the Applicant’s son for the summer school sessions. There is no mention of any other conditions related to the Applicant’s son’s educational plan in the order on consent.

21The Board does not have the jurisdiction to hear the matter related to the Applicant’s hours of schooling or support for transportation as these are matters that were before the court as evidenced by the order on consent dated June […], 2009. The Board did not hear any testimony from the Applicant regarding other concerns or need for other supports than those mentioned.

Complaint #8: The Society did not give the Applicant an opportunity to be heard or hear her concerns relating to new allegations made against her that the Society did not inform her about.

22The Applicant testified that her daughter made allegations against her to the Society sometime in August as an act of revenge. She stated that the Society used this information as the basis for the removal of her son from her care. The Applicant submitted a copy of an affidavit dated August […], 2009 along with her application to the Board. She confirmed that she wrote the affidavit for submission in relation to a court proceeding dealing with these alleged false allegations and other matters in response to the Society’s application to the court. The Board did not hear any testimony to indicate that the Society took the actions to remove her son based on allegations made by the Applicant’s daughter. The Board understands that the Applicant believes that that may have been the case but she did not present any evidence to support this belief. The order on consent reflects the reasons for the Society’s removal of the Applicant’s son. The Applicant was part of the process in arriving at the terms of the order on consent. The order and the conditions in it do not reflect any concerns related to the allegations made by the daughter. The Applicant was aware of and provided with the reasons for the removal which did not include the allegations of the daughter. Therefore, the Board dismisses this complaint.

CONCLUSION

23The Board orders the Society to provide a written explanation to the Applicant as to why it did not notify the Applicant of her son’s absence from the group home, including the notification procedures that are in place in situations where children are in the care of a foster parent. The Board orders that the explanation include the issues of who is responsible for notifying the parent or parents of a youth in this situation should the youth run away, the timeframe of notification, if the Society is responsible for notifying a parent, and why they did not do so in this case. The Society is to provide this written explanation within 14 days from the date of this decision.

24The Board orders the Society to comply with the Act by providing the Applicant with an opportunity to be heard regarding her concerns about her current worker LS, the need for a different worker and if the Society is unable to provide a new worker, written reasons to explain why it cannot do so. The Board recommends that the Applicant have the opportunity to discuss these concerns with a staff person who is not the current worker’s supervisor. The Society is to schedule this meeting within 30 days of this decision and is to provide written reasons as required 14 days from the date of the meeting.

Celia Denov

Presiding Member

Mary Wong

Board Member

Gail Gonda

Board Member