G.M. v. Dilico Anishinabek Family Care, 2012 CFSRB 42

CHILD AND FAMILY SERVICES REVIEW BOARD

G.M.

v.

Dilico Anishinabek Family Care

REASONS FOR DECISION

Date: October 10, 2012

Citation: 2012 CFSRB 42

Indexed as: G.M. v. Dilico Anishinabek Family Care

(CFSA s.68)

INTRODUCTION

1G.M. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on May 28, 2012. He is complaining about Dilico Anishinabek Family Care (the “Society”) pursuant to subsections 68.1(4) 1, 68.1(4)2, 68.1(4)3, 68.1(4) 4 and 5 of the Child and Family Services Act (the “Act”).

2The issues addressed were whether the Society refused to proceed with his complaint, failed to respond to his complaint within the timelines required by regulation and failed to comply with the complaint review procedure under the Act. The Board also addressed the issues of whether the Society failed to hear the Applicant when decisions were made and service concerns were raised regarding a referral about the Applicant and whether the Society failed to give him reasons for their decisions.

3The Board conducted the hearing on September 13, 2012. The Board finds that the Society did not meet its obligations to the Applicant regarding:

• the Internal Complaints Procedure
• his concerns about the referral source
• the reasons for the results of the investigation of the Applicant.

BACKGROUND

4The Applicant was the fiancé to the mother of two children. Though he did not reside at her residence, he spent much of his time at her home to assist her with raising the family. The mother had been traumatized by an incident involving gang members and has been depressed. She was put on pain killers due to the severe beating inflicted on her during the gang assault incident and she became addicted.

5On May [ ], 2012, the mother received a call from the Society regarding a referral that the Applicant and the mother were selling their medications, that the Applicant was bringing prostitutes home and that the home was messy. The Applicant had been in a heated dispute with a [staff] at a methadone clinic whom he claimed had falsified his (and other) drug tests. He had filed a complaint with the College of [a profession] against this [staff] and suspected that either she or someone connected to her had filed this referral in order to get back at him.

6On May [ ], 2012, the Applicant and the mother faxed a letter addressed to the Executive Director explaining the situation involving the [staff] and their belief that the agency was being used to harass them. They requested documentation for the basis of a home visit which was scheduled for May [ ], 2012 and the name of the complainant.

7The Society did not verify the concerns about the Applicant and the mother and closed the file. The Applicant filed his complaint with the Board on May 28, 2012.

ANALYSIS

8The Board must decide:

• whether the Society proceeded with the Applicant’s complaint in the Internal Complaints Review Procedure within the timelines required by regulation and complied with the procedures required by the Act.
• whether the Society heard the Applicant as required when decisions were made or when he raised service concerns, and whether the Society provided him with reasons (explanations) relating to the decisions made.

9The Board’s authority and the Society’s obligations are found in the following sections of the Act:

Matters for Board review

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

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 68 (1) as required under subsection 68 (2).

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

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.

Duties of service providers

(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;

10In order to make a complaint under s. 68.1 (4) 4 [incorporating s. 2 (2) a)] and rely on the right to be heard, an applicant must be a parent. The Society did not dispute that the Applicant was a “parent” under the Act. He had undertaken parenting roles for the mother’s children for several years. He spent 90 percent of his time with the mother and the children, although he maintained a separate residence. The mother referred to him as her partner in the letter dated May [ ], 2012, referenced “our family” and they were referred to jointly as “we” in the letter. The investigation was in relation to their joint household. The Board was satisfied that the Applicant demonstrated a settled intention to treat the children as his own in the twelve months prior to the Society’s intervention. The Applicant, therefore, met the definition of parent under the Act. [s. 37 (1) (d)]. The Applicant, thus, had a right to be heard under s. 2 (2) a in his dealings with the Society. The Applicant could therefore make a complaint under s. 68.1 (4) 4.

11As an individual who was the subject of an investigation, the Applicant received a service from the Society. The Applicant was therefore entitled to reasons for decisions that affected his interests under s. 68.1 (4) 5.

Internal Complaints Review Procedure

12The Board has determined that the Applicant made a written complaint to the Society and that the Society did not comply with the legislated complaints process.

The Applicant and the mother jointly wrote a letter dated May [ ], 2012 to the Executive Director stating their concerns about the referral to the Society. Another version of the letter was addressed to the Executive Director and the worker. The Applicant is not specifically noted as a signatory to the letters (which have the same content). The mother’s name is on the letter and she signed one copy of the letter. The letter sets out that she and her partner have concerns about the referral source and raises questions about the role of the agency. They believed that the referral was malicious and from someone who was doing it as a reprisal.

13The letter is a letter of complaint because it talks of harassment by the Society and requests documentation of contact with the Society in writing. It also questions the actions of the Society and requests documentation for the basis for the home visit. While the letter asks for and provides information, it is more than a mere inquiry. The Board finds further that the complaint is from both the Applicant and the mother although the Applicant did not sign it. The letter refers to “my partner and I “and “we” and “our” in terms of the requests from the Society. The Applicant was known to the Society as the mother’s partner and a part of the family unit and the Applicant was the person actively following up on the letter to the Society. At the hearing, the Society did not dispute that the Applicant had filed a complaint.

14The worker (or “Case Manager”) had a copy of the letter when they went to the house to investigate the same day. The Applicant testified that he asked the workers if he could have the opportunity to see the Executive Director and they told him “absolutely, yes”. According to him, one of them told him to phone the office for an appointment. The Case Manager denied that he had this conversation with the Applicant. The Applicant called later and was put through to an assistant. He waited a couple of days and called again. This time, he was put through to a different assistant who did not know who he was. He believed that he was getting the run around and he never did get a meeting with the Executive Director.

15The Case Manager testified that he explained and left the complaints pamphlet and contact information with the Applicant. The complaints pamphlet contained 5 steps which involved talking to your worker, then the worker’s manager, writing to the Director of Child Welfare Services, writing a letter to the Executive Director requesting that the complaint be reviewed by the Internal Complaints Review Panel (“ICRP”) and then contacting the Child and Family Services Review Board. The Applicant stated that he has never seen the brochure and does not recollect that one was left by the Case Manager. However, the Case Manager did discuss the complaints process. The Case Manager treated the Applicant as a complainant; however, he did not give the Applicant the proper process to follow under the Act. Rather, he gave him the Society’s own process which is not the process mandated by the legislation.

16[ ], Intake Manager, received a call from the Applicant following the first home visit. She stated that the Applicant was upset about the referral and wanted to know the source. He was told that the Society does not give out the source, but with referrals they have to investigate whether they are malicious or not. The Applicant requested a meeting with the Executive Director. The Intake Manager believed that the Applicant expected the Executive Director to attend the next home visit and explained that the Director does not attend protection visits and that the Applicant will have to set up an appointment with his executive assistant.

17The Board finds in favour of the Applicant on the issue of the Society’s failure to follow the legislated complaints process. The Society put in place its own complaint procedure set out in its pamphlet. It involves taking the complaint to various levels in the organization, starting with the worker. This is misleading because under Ontario Regulation 494/06 the only requirement is that the complaint be in writing. The legislated complaints process is the binding process and supersedes the Society’s process contained in the pamphlet. The Applicant made a written complaint. That is enough to require the Society to follow the legislative complaints process. While the Society may still have its own alternative process like that set out in its pamphlet, it must still follow the legislated process. The Society can then give an Applicant the option of using the Society’s more informal process. This was not done in this instance.

18Upon receipt of the written complaint, the Society did not meet its obligations under the regulations. Within seven days after receiving the complaint, the Society must determine if it is eligible for review and if it is not, it must notify the complainant of its decision and the reasons for it in writing. If the complaint is eligible for review, the Society must establish an ICRP and notify the complainant in writing. In response to the complaint letter, [ ], Assistant Director of Protection sent a letter to the mother dated May [ ], 2012 stating that she was in receipt of the May [ ], 2012 letter and that she would “examine all the issues” that were identified with the managers and staff involved. There was no follow-up to the complaint on what the Society had done or any decisions that the Society made. Though the Society met the seven day timeline for a reply, it did not identify whether the complaint was eligible for review under the Internal Complaints Review Procedure. In this regard, the Society failed to provide the Applicant and the mother with the reply mandated by regulation. If the complaint is eligible, the Society must then set up an ICRP. The process was not followed. Thus, the Society failed to comply with the legislated complaints review procedure.

19The Board finds that the Society did not proceed with the Applicant’s complaint, did not follow the timelines required by regulation and did not comply with the procedures required by the Act.

Whether the Society heard the Applicant and gave reasons regarding the Applicant’s concerns about the Society’s investigation

20As noted above, the Applicant and the mother wrote a letter dated May [ ], 2012 summarizing their concerns about the referral source and questioning the Society’s response.

21They expressed their concerns that the Society was being used to harass the family and that if the Society was going to investigate their family the reasons for doing so should be open to scrutiny. The Applicant had filed a formal complaint before the College of [a profession] and he believed that this person was behind the complaint. They requested documentation for the basis of the Society’s investigation and the name of the referent. They stressed their extreme concern that the Society was being used to abuse and harass the family.

22The Applicant believed that the [staff] who had falsified his drug test or someone connected to her was behind the referral. The letter of May [ ], 2012 expressed his concerns and was also intended as a warning to the Society since the Applicant believed that this [staff] has testified in court on behalf of the Society against parents who were allegedly taking narcotics. He testified that this [staff] had charges pending, some of which were criminal in nature. He had tried to get a meeting with the Executive Director to tell him about this [staff].

23During the home visit, the Applicant was told that the reasons for the investigation were alleged drug trafficking, prostitutes and alleged messiness in the home. The allegations for the investigation were given to the Applicant. However, the Applicant stated that he did not get much opportunity to express his concerns about the [staff] to the Case Manager and the other worker. He attempted to give the Case Manager the summary of his complaints to the College of [a profession] which the Case Manager refused. The summary of complaints is a detailed document that sets out very serious allegations against the [staff].

24The Case Manager explained the referral concerns directly to the Applicant and the mother. Both the Applicant and the mother were co-operative during the visit and showed them the methadone which was locked up, and showed them the cupboards and fridge which contained food. They denied the presence of prostitutes and the mother was quite upset about this allegation. The Applicant and the mother showed the workers through the house and the sleeping areas. They tried to get the name of the referent and the Case Manager and the worker explained that they would not be able to give the name of the source. The Case Manager stated that the Applicant provided them with his scenario involving the clinic, his concerns of falsified tests and offered to show him his summary of complaints against the [staff]. The Case Manager said that it was not necessary because he believed the Applicant.

25Subsequently, the Case Manager contacted the mother to explain to her why the follow up visit was cancelled. The Case Manager tried to follow up with the Applicant about the allegations twice by going to his home, but was unsuccessful. The investigation took more than the usual 30 days. The Society’s concerns were not verified and a letter was sent to the mother who was the caregiver at the time, informing her that the file was closed. There was no further attempt to follow up with the Applicant by telephone or mail. No letter was sent to him about the conclusions of the investigation. The Society was informed about the separation between the Applicant and the mother and the Applicant was no longer considered by the Society as a part of the family unit. However, at the time of the investigation, the Applicant was considered a part of the family unit and should have been informed about the Society’s decision at the conclusion of the investigation. Further, it was a decision that affected his interests regardless of his status in the family.

26The Applicant called the Intake Manager after the home visit with his concerns about the referral source and wanted to know the name. He believed that the referral was false and that this person was employed by the Society and that this person falsified tests leading to workers removing children. The Intake Manager told him that they could not give the referent’s name and that the Society has to investigate referrals whether they are malicious or not.

27Although the Society knew that the referral source was not the [staff] and they believed that the source was clearly not connected to the [staff], the Society did not inform the Applicant of this at any time during the course of their investigation.

28The Assistant Director of Protection (“Assistant Director”) testified to the screening process for referrals. The Society follows the Child Protection Standards in Ontario and assesses the information to see which response it requires under the Eligibility Spectrum. Screeners are experienced and the Society does a thorough assessment of the person giving information using the “likert scale”. According to the Assistant Director, through this assessment, the Society can determine if the referral is malicious. In the case of the referral involving the Applicant, the referent showed genuine concern for the children. The Assistant Director could not recall if the screening for this referral was re-examined when the Applicant raised his concerns. She does not know if the screening process was explained to the Applicant. She stated that the [staff] did not testify in court on behalf of the Society that she is aware of and that the Society has no relationship with her. She does not have the information regarding the involvement between the Applicant and the [staff] and does not consider this information to have been relevant to their investigation.

29In regards to the Applicant’s concern about the referral source the Board finds that he was not heard. The right to be heard exists for parents and their children to permit them meaningful participation in the process, to ensure that their perspective will be taken into consideration when the Society is making decisions that impact their lives. 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. The Applicant and the mother wrote a letter to the Executive Director detailing their concern about the referral source but received no answer from him. The Society‘s letter to the mother, saying they would “examine” the concerns, was the only response. The Applicant attempted to have a meaningful discussion with the Case Manager and attempted to give him a summary of his complaint against the [staff], but the Case Manager would not look at the summary, which is a source of potentially concerning information. He did not think it was necessary since he believed the Applicant. However, the Case Manager did not actively look into the Applicant’s concerns or report back to him about his concerns. The Applicant called the Intake Worker to make his concerns known. He was only told that the Society could not reveal the source and had to investigate referrals whether they were malicious or not. The Intake Manager did not actively investigate the Applicant’s concerns. If the Case Manager and Intake Manager had heard the Applicant they would have looked at the summary and examined the referral source again and reported back to the Applicant. The Applicant requested a meeting with the Executive Director to make his concerns known, but he was unable to get an appointment.

30The right to reasons also reflects the importance of meaningful participation for parents. To meet the statutory obligation, reasons must be timely and detailed and the Applicant must be given sufficient information to understand what factors were considered in making a decision and why. The Board finds that the Applicant was not given reasons for the Society’s decision that the referral source had no connections to the [staff]. In fact, it only told him that it could not give him the name of the referent. It did not give the Applicant sufficient information to alleviate his concerns. The Assistant Director of Protection testified to the process the Society takes to screen referrals. However, no one sat down with the Applicant to explain the process to him. The Society did not explain to the Applicant the reasons why they did not believe the referral came from the [staff] or any one connected to her. They only told him that the Society has to investigate even if the referral was malicious.

31In regards to the Applicant’s concern about the referral source, the Board finds that he was not heard or given reasons for the Society’s decision.

32The Board finds that the Applicant was heard concerning the allegations resulting in the investigation. When the Case Manager and another worker attended at the home of the mother, they spoke to both the Applicant and the mother directly and explained what the allegations were. They also gave the Applicant an opportunity to respond to these allegations. The file was subsequently closed. However, the Case Manager did not follow up with Applicant to inform him that the file was closed. The Applicant was told, in passing before the investigation had concluded that the allegations were not verified but that was in the context of speaking to an assistant who appeared to be trying to deter him from raising concerns about the referral source. This comment was an aside, not an explanation about the investigation. The Applicant was left without information about the status of the investigation or the outcome. He did not know that the allegations had not been verified or why not. It was not explained to him why the investigation lasted beyond the 30 days set out in the Standards. The Society failed to give the application sufficient, timely information to understand what decision they made and why. The Society was not relieved of this obligation because the Applicant was no longer a parent in their eyes. As the subject of an investigation, the Applicant had a right to reasons for decisions affecting his interests, such as whether serious allegations against him had been borne out or not.

CONCLUSION

33The Board finds that the Society did not meet its obligations to the Applicant regarding:

• The Internal Complaints Procedure
• The concerns about the referral source
• Reasons for the results of the investigation.

34The Applicant was told the allegations against him and, thus, was given the reasons for the investigation. The Applicant was also heard about the substance of the allegations.

35The Board orders the Society to proceed with the Applicant’s complaint as summarized in the letter of May [ ], 2012 in accordance with the complaint review procedure established by the legislation. The Society must determine eligibility. If the complaint is eligible, the Society must hold an ICRP and if not eligible, it must explain why not. The time lines in the legislation apply and start from the date of this decision.

36The Board orders the Society to provide a detailed written explanation to the Applicant, including reference to the Child Protection Standards in Ontario and the Eligibility Spectrum, outlining the steps they took in their investigation, the reason for the length of the investigation, the decision reached at the conclusion of the investigation and the factors they took into account in reaching the decision not to verify the allegations against the Applicant. The Society has fifteen days from the date of this decision to comply with this order.

CONFIDENTIALITY ORDER

37Parties 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.