T.H. v. Children’s Aid Society of Toronto, 2014 CFSRB 20

CHILD AND FAMILY SERVICES REVIEW BOARD

T.H.

v.

Children’s Aid Society of Toronto

REASONS FOR DECISION

Date: May 15, 2014

Citation: 2014 CFSRB 20

Indexed as: T.H. v. Children’s Aid Society of Toronto (CFSA s.68)

INTRODUCTION

1This application is about the service obligations owed by the Children’s Aid Society of Toronto (the “Society”) to the Applicant in respect of their involvement commencing August 6, 2013. On September 23, 2013, the Applicant filed an Application pursuant to s. 68.1 of the Child and Family Services Act (the “Act”) R.S.O. 119 c. C11, as amended. The application was found to be eligible for review on September 23, 2013.

2Following a motion challenging the Board’s jurisdiction, the Board determined that it had jurisdiction on November 23, 2013. The oral hearing on the merits was held on April 30, 2014 at which time the Board reserved its decision. These are the reasons on the merits of this Application.

3The questions for the Board under s. 68.1(4) 4 and 5 of the Act relate to the Applicant’s complaints on the following issues: (1) the limitations imposed on his access to the children; (2) the decision that he could not reside with the children; (3) the concern that that the children were fearful of the Society workers; and, (4) the complaint that intake worker treated him in a manner that was racist.

4The Board dismisses the Application for the reasons that follow.

Background

5The Applicant and his wife resided as an intact family prior to his admission to the mental health ward of the local hospital on July 31, 2013. On that day the Applicant was apprehended by police after he tried to throw himself off the balcony and stated that he and his family were ghosts. The treating psychiatrist made a diagnosis that the Applicant suffered from a mental health illness and prescribed medication. On August 6, 2013, the hospital social worker contacted the Society with concerns that the Applicant was at high risk for being non-compliant with medication, and out of concerns for the safety of the children.

6From August 8, 2013 to September 24, 2013, the Society workers met with the Applicant and various support persons (including his wife) on six occasions to discuss concerns and to develop a plan to protect the children. On or about September 10, 2013, the Applicant’s wife and children left Canada, and have not returned.

Analysis

7The Board must decide whether the Applicant was heard, and whether he was provided with reasons, when decisions were made that affected his interests and when he raised service concerns.

8The relevant legislative provisions under the Act are:

68.1(4). Matters for Board Review

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

(4) Allegations that the society 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.

2(2). Duties of Service Providers

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.

9In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33, at paras. 13-14, the Board described the purpose of s.68.1 (4) and (5) and addressed s. 68.1 (4) 4 as follows:

The obligations under s. 68.1 (4) 4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. 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.

To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.

10The “right to reasons” under the Act, means a right to a meaningful explanation about decisions that affect the applicant’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8 at para.13, the Board held that:

With respect to this section of the Act, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A complainant must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

The Access and Return to the Home Issues

11The intake work first met the Applicant, along with his wife and three support persons, when he was an in-patient on the mental health ward of the hospital on August 8, 2013. On that date the Applicant was taking the prescribed medication, however, the intake worker testified that he appeared to be delusional. The intake worker described her role as someone to protect the children. She discussed the need to devise a kinship plan for the children if the Applicant would be returning home because of the Applicant’s mental health issues.

12On August 13, 2013, the intake worker had an appointment with the wife. When she arrived at the home the Applicant was present, on a day pass from the hospital. The intake worker testified that the Applicant appeared lucid, and he agreed to continue to take the prescribed medications and to work with the Society. The Society explained that the Applicant’s contact with the children needed to be supervised and that he could not reside at the home because of his mental health issues and the recent incidents. The intake worker responded positively to the steps being taken by the Applicant.

13Following his discharge from hospital on August 16, 2013, the Applicant moved into the home of his brother-in-law, who was also the access supervisor. On August 19, 2013, the intake worker attended for the first supervised access visit between the Applicant and the children. Once the visit ended, the intake worker met with the Applicant and the brother-in-law and discussed the following: (a) the reasons why the Society was involved with the Applicant and the children; and (b) the reasons why the Applicant had been admitted to the mental health ward of the hospital.

14At the meeting on August 19, 2013, the Applicant raised the issue as to why his access needed to be supervised by his brother-in-law, and why he could not return to his home. He explained that the children were upset and missed him. The intake worker reviewed the following concerns: (a) the Applicant’s recent violent and self-harming behaviours; (b) the Applicant’s refusal to attend for treatment in the year prior to his admission to hospital, and, (c) the wife’s lack of understanding of the effects of the Applicant’s mental health issues on the children and the related risks. The intake worker advised that changes to the access issue and the request to return to the home would be considered based on information that would be provided by the doctor and the family, and from discussions that would take place with the family services worker (as the file was being transferred).

15The intake worker also reviewed the conditions that the Society intended to ask for at an upcoming Court attendance as set out in the Court Application (including that the Society have discretion over supervised access; a request for an order that the Applicant not reside with the children; and a requirement that the Applicant comply with the treatment plan and continue to take his medication).

16On September 3, 2013, the concerns and conditions were discussed with the Applicant and his wife during a meeting that was held at the Court while waiting for the child protection case to be heard by the Judge. On that day the Applicant was represented by legal counsel. The intake worker explained that if the mother worked with the Society to increase safety in the home, and if the Applicant followed the treatment plan, then he could likely return to his go home in a reasonable time. The Applicant asked the intake worker for more access as the children missed their father, and he expressed being frustrated by the Society for making him homeless. The Judge made the orders requested by the Society. The intake worker advised the Applicant and his wife that the file would be transferred to a family services worker.

17During a transfer meeting that took place on September 9, 2013, the intake worker again reviewed the concerns, the conditions and the reasons for the decisions taken by the Society. The issues discussed at that meeting include the requirement that the Applicant reside outside of the home and the need for supervised access. The intake worker responded to the Applicant’s request for additional time with the children by explaining that 2 visits per week is standard. She also explained that the visits needed to take place on weekdays so that the Society could monitor the access. The intake worker then left the meeting leaving the Applicant, his wife and the children with the family services worker.

18The family services worker continued the discussion about the Applicant’s request for increased access and to return to the home. The family services worker agreed to increase the supervised access to 3 hours per visit. He acknowledged that the children missed their father but explained that he needed to speak with the Applicant’s psychiatrist on September 12, 2013 to discuss the Applicant’s stability, compliance with medication and treatment and concerns relating to the use of marijuana and alcohol.

19The Applicant testified that the family services worker told him that it would take months or years for him to be able to return to his home. The Applicant questioned the family services worker whether he stated that the Applicant could not return home anytime soon. The family services did not recall making that statement, nor can this statement be found in the case notes that he wrote following the visit. Instead, the notes clarify that the family services worker explained that as he saw more improvement in the Applicant’s stability the goal would be to get him back to the home, and as soon as possible. The Board prefers that evidence, as it is consistent with the information given by the Society throughout its contact with the Applicant. At the end of the meeting a further appointment was scheduled for October 2, 2013, at which time the access would be discussed.

20On September 24, 2013, the family services worker met with the Applicant at his home. The Applicant’s wife and children had left Canada on or about September 10, 2013. The family services worker asked whether the Applicant was continuing with the medication. He requested information about how his wife and children were doing, and when they would return. The family services worker advised that the service plan could not continue, as the children were no longer in Ontario.

21The Applicant does not dispute that the meetings set out above took place, or that he was given this information. However, the Applicant’s disagrees with the decisions made, and the reasons given by the Society on the issues of supervised access and his return to the home for the following reasons: (a) Neither the intake worker nor the family services observed him acting dangerously; (b) The psychiatrist was incorrect in diagnosing him with a mental health illness, as his behaviour stemmed from the use of marijuana, which the Applicant ceased using when he was in hospital; (c) the legal counsel did not advocate his position on September 3, 2013 and instead sided with the Society; and, (d) from the date of discharge from hospital and until now, the Applicant was not taking his medication, as it was harmful and he did not need it.

22While the Applicant disagrees with the decisions made and the reasons provided by the Society, it is not the Board’s role to review whether the reasons or decisions were reasonable. The Board finds that the Applicant’s service concerns were heard and he did receive timely reasons which contained sufficient detail for the Applicant regarding what factors the Society considered and why in making its decision not to support the Applicant’s request for unsupervised access, for increased frequency of access or his request to return home.

23The Society met with the Applicant and various support persons on six occasions at which time the workers set out their concerns and the reasons for those concerns. This information and the positions being taken by the Society were also set out in the Court Application that was discussed on August 19, 2013 and which was before the Court on September 3, 2013.

The Children Were Afraid of the Society Workers

24The Applicant testified that he informed the intake worker that the children were afraid of her when they attended at Court on September 3, 2013. The intake worker had very limited contact with the children, and never met with either privately. She advised the Applicant that the children should be told that the intake worker was there to protect them and that they should not be afraid of the worker or the police.

25On September 9, 2013, the family services worker considered meeting with each child privately. However, after speaking with the Applicant and his wife, the family services worker decided not to interview the younger child due to her age and language development. Instead, the family services worker observed her while in the care of the Applicant’s wife. The family services worker requested to meet with the older child, who was hesitant to do so. The Applicant’s wife encouraged the child to meet with the family services worker and a private meeting took place in another room in the home. The child presented as shy he did not seem to be afraid of the family services worker. Neither parent raised any concern about this meeting.

26The Board finds that the Society heard the Applicant’s service concerns about the children. The workers did not demand that either child meet with them privately and they took steps to interact with the children in an appropriate manner.

Allegations of Racism

27As set out in D.B. v. Children’s Aid Society of Oxford County and Family and Children’s Services of Guelph and Wellington County, 2013 CFSRB 41, the Board must consider the Human Rights Code and Code values in the exercise of its authority. In this case, the Applicant raised the issue of racial discrimination as a factor in his treatment by the intake worker. He testified that during one of the meetings, the intake worker raised her voice in an unfriendly manner, told him to take off his sunglasses and said that he is sick. The Applicant believes that the intake worker treated him in this manner because he is ethnic background.

28The intake worker denies that she behaved in a racist manner. She acknowledges that she asked the Applicant why he was wearing sunglasses as the meeting was held inside. When the Applicant declined to answer or to take off the sunglasses, the meeting continued. The allegation that she had violated the Applicant’s Human Rights only came to the intake worker’s attention when she reviewed the Application currently before the Board.

29The Board finds that there is no evidence of racism on the part of the intake worker, nor can one infer any nexus between the discussion between the intake worker and the Applicant regarding the sunglasses and the Applicant’s race.

Decision

30Section 68.1(7) of the Act states that after reviewing the complaint, the Board may do one of several things including: (e) dismiss the complaint.

31The Board dismisses the complaint.

CONFIDENTIALITY ORDER

32Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings.

33Anyone who wishes an exception to this order must do so only with an order of the Board or the Court, as appropriate.

ANDREA HIMEL

_____________________

Andrea Himel

Presiding Member