V.A. v. Toronto Children’s Aid Society, 2012 CFSRB 27

CHILD AND FAMILY SERVICES REVIEW BOARD

V.A.

v.

TORONTO CHILDREN’S AID SOCIETY

REASONS FOR DECISION

Date: July 17, 2012

Citation: 2012 CFSRB 27

Indexed as: V.A. v. Toronto Children’s Aid Society

(CFSA s.68)

INTRODUCTION

1This is an application by V.A. (the “Applicant”) filed with the Child and Family Services Review Board (the “Board”) on October 27, 2010, pursuant to section 68(5) of the Child and Family Services Act (the “Act”), regarding the internal complaints process followed by the Toronto Children’s Aid Society (the “Society”).

2The Applicant wrote a letter of complaint to the Society, dated April [ ], 2010. An Internal Complaint Review Panel (“ICRP”) was convened and a meeting took place on June [ ], 2010. The Society sent correspondence (the “Summary”) dated June [ ], 2010 to the Applicant summarizing the meeting.

3The Applicant is alleging that the Society failed to follow the internal complaints review process as set out in the Act and that the ICRP process failed to hear her concerns as set out in her complaint letter dated April [ ], 2010 and failed to provide her with reasons for the response to those concerns. The Society takes the position that it proceeded with the ICRP in accordance with the requirements of the statute, and that the applicant’s concerns were heard and reasons given.

4The Board heard the application on June [ ], 2012. The Applicant and her witness, [ ], who was present at the ICRP meeting, gave evidence at the hearing. The Society did not call any evidence.

5The Board must decide whether or not the Society followed the statutory complaints process, whether or not the Applicant’s concerns were heard by the ICRP, and whether or not the Society gave the Applicant a meaningful response to those concerns following completion of its ICRP process.

6The Board finds that the Society did not follow the complaints review process as set out in the statute. The Board also finds that the Society’s ICRP did not hear the applicant’s concerns as required by section 2(2)a of the Act or provide her with reasons for the response to those concerns as required by section 68.1(4)5 of the Act except regarding one of her issues.

BACKGROUND

7During the period of September to December 1969, the Applicant was a resident at [a home]. During that period and over the next number of months after her child was born, she received services from social workers from the Society. The social workers played a significant role in the adoption of the Applicant’s child, born on [ ], 1970, and placed for adoption very shortly after birth.

8Subsequently, in 2003, the Applicant again became a recipient of services from the Society, when she was seeking disclosure on the adoption process. She was reunited with her son in 2003. Her son subsequently died [of an illness] on March 27, 2008.

9In 2008, after the death of her son, the Applicant contacted the Society again and applied for access to her records. She did receive her file in January 2010. After reviewing the file, the Applicant contacted the Society to discuss the contents of her file.

10The Applicant submitted to the Society her original complaint on April [ ], 2010. This letter contained a number of complaints concerning past practices and present practices of the Society.

11Concerning past practices, the Applicant raised the following complaints.

a) that she was not provided with sufficient information to make an informed decision as to whether or not to keep her baby, and that too much emphasis was placed on getting parental support to the exclusion of discussing any other alternative option;

b) that the social worker misled her, by having her sign a “Medical Consent” which was attached to a clipboard which covered and disguised the top part of that paper which was a “Consent to Admission”;

c) that the file states “she did not visit the baby in the foster home”; yet the Applicant was never told such visits were possible.

d) that she never received any documentation (legal or otherwise) or copies of papers relating to the entire process.

12Concerning current practices, the Applicant raised the following complaints.

a) that when the Applicant spoke to the staff and two supervisors at the Society to discuss the contents of her file, she was addressed as “Birthmother” over her repeated objection to the use of that word. Her complaint highlights staff insensitivity, and the absence of a respectful, professional, sensitive and compassionate manner and atmosphere; and that she is not getting factual answers to her questions.

b) that with regards to the post-partum depression, major depression, post-traumatic stress disorder and pathological and unresolved grief that the Applicant attributes to her past experience, the society never offered any help or counseling, which she has been taking for a number of years.

c) that a Society staff called the Applicant’s doctor, without any consent, to try to get medical information about her current mental status.

d) that there are a number of “discrepancies, untruths, exaggerations, and shocking revelations” in the file which needed to be addressed.

ANALYSIS

13When undertaking an internal complaints process, the Society is obligated to follow the procedures set out in the regulation and the requirements set out in the Act.

The Act requires the Society, in the internal complaints process, to listen to the Applicant’s concerns and to provide the complainant with reasons for decisions that affect the complainant’s interests [s. 68 (5) 2 incorporating s. 68.1(4) 4,5]. The regulations set out specific time frames and procedures for internal complaints.

14Under section 68(5) of the Act, the Board can review the Society’s decision following completion of the ICRP. The decision under review in this case is the Society’s summary letter of June 25, 2010.

15The focus of this application to the Board is:

1. Did the Society follow the statutory complaints process?

2. Did the ICRP hear the Applicant’s concerns?

3. Did the ICRP provide reasons for decisions it made?

16The Society did not provide any testimony or submit any documents into evidence. The Board relied upon the Applicant’s application to the Board, and the Applicant’s evidence.

1. Did the Society follow the statutory complaints process?

17The statutory complaints process which must be followed when a person makes a direct complaint to the Society is found in subsections 68(1) through (4) of the Act and in sections 1 through 10 of Regulation 494/06. Section 9 of the Regulation 494/06 reads:

9. Within 14 days after the meeting, the ICRP shall send a summary of the results of the meeting, including any agreed upon next steps, to the complainant and the executive director of the society to which the complaint was made.

18After the ICRP meeting was held on June [ ], 2010, the panel sent a “summary of your meeting” dated June [ ], 2010 in the form of a one and one-half page letter to the applicant. The Summary acknowledged that her earlier experience with the Society “resulted in significant emotional impact to you” but does not speak directly to past practices. The Summary contained some information about the applicant’s complaints about the Society with respect to current practices (a) and (d).

19The Applicant in her testimony raised the concern that after a three hour meeting, where she presented all of her concerns, past and present, she received a short one-page-and-a-half letter that minimized her past concerns and only dealt with some of her present concerns. She was particularly alarmed by the fact that little mention was made of her concerns about past practices although this was discussed for over 70% of the meeting. Further, the Applicant and [ ], her support person who attended the ICRP meeting, recall that the applicant did most of the speaking at the meeting, with the panel interjecting mostly with questions for clarification, rather than explanations or reasons.

20The ICRP is required by statute to provide a summary of the results of the meeting to the Applicant. While the regulation states that the Summary must include any agreed upon next steps, it does not mean that only agreed upon steps are to be included. The Board is of the opinion that the Summary should, in a manner discussed later in this decision, address all of the concerns raised by the applicant and set out the next steps that have been taken, should be taken or will be taken to address the applicant’s concerns. If there are no further next steps to be taken, the letter should have made a statement to that effect. The letter from the ICRP did not do this.

21The Board finds that the Society did not comply with the statutory complaint review process when it failed to provide a proper Summary of the results of the meeting as required by Regulation 494/06.

2/3. Did the ICRP hear the Applicant’s concerns, and provide reasons for decisions it made?

22The further issue before the Board is whether the ICRP met the two criteria in the statute, namely did the Society hear the applicant, and did the Society give reasons for its decision.

23The Applicant’s right to be heard in the ICRP process is grounded in section 68(5) 2 which incorporates subsection 68.1 (4)4. That section in turn incorporates the right to be heard, as provided by section 2(2)a of the Act which reads:

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;

24As well under the statutory complaints scheme, the Applicant is entitled to be given reasons for decisions that affect her interests, as provided by section 68.1(4)5 of the Act:

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

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

25To be heard involves active listening, discussing concerns, taking steps to address concerns and communicating this to the Applicant so that she can feel that her concerns were taken seriously and were looked into. This would indicate to the Applicant, even though she may not agree with the outcome, that she was treated with dignity and with respect.

26The right to reasons is based on the principle that sufficient information, both factual and contextual, is required to understand decisions that were made. There is a link between the right to be heard and the right to reasons because having information helps people understand, participate meaningfully in discussions and ultimately, helps in achieving acceptance of decisions made.

27The Board needs to determine whether the ICRP meeting and the Summary provided by the ICRP provides a meaningful opportunity to be heard and gives explanations of decisions made, in response to the concerns that were expressed in the initial complaint. The Board examined the complaints listed above, and finds that, with one exception, the Society did not hear the Applicant and did not offer reasons for its decisions, concerning both its past and its current practices. The one exception is the Applicant’s complaint about inaccuracies in her file.

28Regarding the Applicant’s complaint about the various entries in the file with which she disagrees, the Applicant testified that this issue was discussed at the ICRP meeting. The Society invited the Applicant to prepare a submission, outlining the errors and omissions, and proposing what she saw as accurate regarding the various issues.

29The Applicant in her testimony acknowledged that at the ICRP meeting she had agreed to submit an affidavit, to be added to the file, regarding the inaccuracy of the Society’s records. She also acknowledged that this document has not yet been prepared by her, but indicated that it will be prepared and submitted in the near future.

30The Board finds that the Applicant’s complaint about the inaccuracies in her file was addressed at the ICRP meeting and in the Summary, which indicates that the Applicant was heard when she raised this concern at the meeting.

31With respect to the issue of past practices, the ICRP Summary states “While it is not possible to review past practices from many years ago in this process . . .”. However, the Summary does not give any indication of what steps if any it took to address the Applicant’s concerns about past practices and the reasons why it is impossible to do so now. The Summary did not attempt to provide reasons for the practices that may have been in effect at the time that she gave birth to her son. The Applicant also indicated that parts of the Summary were “a slap in the face”. She was particularly upset about the phrase “ . . .we were very impressed by your resilience and focus on moving forward . . .” which she felt was a very condescending comment in the Summary, especially in view of the years of therapy and counseling she has received, and the emotional pain she still feels over the events of more than forty years ago.

32With respect to the issue of current practices, complaints a) through c) are specific, and relate to events of the last two years. Specific persons are mentioned and specific situations are described, yet complaints b) and c) are not even mentioned in the Summary. Complaint a) is dealt with in a most general manner, with no specific reference to the particulars of that complaint.

33Two short paragraphs in the Summary commit the ICRP to recommend that the Society review its use of the term “birth mother”, and that the staff in Adoption Disclosure be more sensitive to recognize the seriousness of the issues being addressed. The Applicant in her letter of April [ ], 2010 described in great detail her interaction with three named staff and their behaviours. Other than the very general ICRP recommendation, the Applicant’s concerns are not addressed. There is nothing in the Summary to indicate that the Society spoke to these staff and what the outcome of such discussion was. The Board finds that the Applicant was not heard on this issue.

34The Board finds that the Society did not meet the required ICRP statutory obligations when it provided its Summary. The Summary is the Society’s record of what it did in response to a direct complaint. A review of this Summary should be adequate to demonstrate to those with oversight of the complaint review process, that is, the Board, whether or not the Society met its statutory obligation to listen to complaints and provide reasons for decisions. Given that the ICRP Summary provides a permanent record and a closure to the ICRP process, it is important for the Society to outline in the Summary the issues addressed, what steps were taken, the conclusions that were reached, and what decisions were made, while respecting the confidentiality required by the Act.

35The Summary sent to the Applicant is very deficient in providing a record of the information the Applicant shared with the ICRP panel, of the client being heard and of an explanation and reasons being given. One of the complaints about current practices is mentioned in the Summary while others are not. The complaints about past practices are summarily dismissed. The Summary is indicative of the fact that the Applicant was not heard, let alone given reasons. If the Applicant was fully heard then the Summary would indicate what the panel did in response to those complaints. The Summary would also contain reasons for various decisions made, keeping in mind the context of the era in which these decisions were made.

36The Board heard testimony that the Applicant did most of the talking at the ICRP meeting. The fact that the ICRP panel only asked a few questions or asked for a few clarifications at the meeting all the more emphasizes the requirement that more information and more reasons be spelled out in the Summary. It would be very acceptable for the ICRP panel to have spent most of the meeting listening and taking in information from the Applicant, and then a few days later discussing what they heard, and articulating reasons and next steps that would then be incorporated into the Summary. The Summary shows no evidence of such a thoughtful process having taken place.

37Further there are no notes or minutes of the meeting to indicate the content of the meeting, which would also form part of the record. The Applicant received correspondence from the Society, dated December [ ], 2011, informing her that there are no minutes of the ICRP meeting. The letter also indicated that the Society’s ICRP file does not contain a list of the documents that the Applicant brought to the ICRP meeting and which were provided to the persons at that meeting. The evidence fails to demonstrate that the Society’s ICRP heard the Applicant by seriously considering her perspective and input and by taking responsive action or explaining how despite her perspective, other considerations factored into the decisions made about next steps. Further, the ICRP process did not provide complete, meaningful reasons to the Applicant. These findings do not apply to concerns for inaccuracies in the file for which the Society’s ICRP process met its obligations.

DECISION

38The Board finds that, with the exception of the complaint relating to inaccuracies in the file, the complaints of the Applicant have not been heard, and that the Applicant has not been given reasons for the various decisions that have had a significant impact on her.

39The Board orders that the ICRP reconvene within 30 days of this decision to review the Applicant's concerns as set out in her compaint letter and as discussed with the panel on June [ ], 2010. Other than the Applicant’s complaint about the inaccuracies contained in her file, the panel is to address all of the applicant’s concerns set out in her complaint letter.

40The Summary of the results of the meeting should focus on the outcome of that meeting and must contain:

a. an indication that each complaint was considered by the panel and how the Applicant’s input factored into the panel’s reasoning;

b. any steps the panel took to investigate these allegations;

c. the outcome of the investigation, including specifics of any actions taken or to be taken; and

d. meaningful and detailed reasons for any decisions made by the ICRP regarding follow up, including any decisions to take no action.

41This Summary shall be forwarded to the Applicant within 15 days of the date of the ICRP panel re-convening.

CONFIDENTIALITY ORDER

42Parties and their representatives must not use, share or disclose any documents or information provided or used in this application with anyone including the media or on-line. Any documents or information shared by the parties must be used only for the purpose of the hearing of this application by the Board.

DENYSE DIAZ

Denyse Diaz

Presiding Member

ALIZA LAZOR

Alina Lazor

Panel Member

JOHN F. SPEKKENS

John F. Spekkens

Panel Member