CHILD AND FAMILY SERVICES REVIEW BOARD

Applicant

v.

Kawartha- Haliburton Children’s Aid Society

REASONS FOR DECISION

Date: January 30, 2015

Citation: 2015 CFSRB 04

Indexed as: Applicant v. Kawartha- Haliburton Children’s Aid Society

(CFSA s.68)

INTRODUCTION

1This is an application about whether the Society met its service obligations to the Applicant, a mother, regarding the placement of her child with kin out of province and its discussions with the police. The Application is brought under s. 68.1(4)4 and 5 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended (the Act).

2The Child and Family Services Review Board (“the Board”) must decide whether the Society heard the Applicant when it made the placement decision and in its discussions with the police and when she raised service concerns. The Board must also decide whether the Society provided the Applicant with reasons for the relevant decisions it made.

3The Applicant’s position is that she was excluded from communication with the Society and, as such, it did not meet its obligations. The Society’s position is that it met its obligations because the statutory scheme permits it not to hear a parent or provide reasons when there is a crown wardship no access order and where it is not appropriate to engage the parent.

4The Society does not contest that it did not involve the Applicant in decision making about the issues in question or that it did not provide her with reasons.

5The main issues for the Board in this application are, first: whether the Society was obliged to hear the Applicant and, if so, was it appropriate for them to do so? And second, was the Society obliged to provide the Applicant with reasons for decisions separate and apart from being heard.

6The Board finds that the Society did not meet its obligations under s. 68.1(4) 4 and 5 with respect to kin placement and with respect to the Applicant’s service concerns about the police. The Board finds that the Society did not make a decision to misinform the police about the appeal and thus this aspect of the application is dismissed.

BACKGROUND

7The Applicant is the mother of a daughter, (“the child”) who is now 3 years of age. The Society commenced child protection proceedings in September, 2011. The Applicant had counsel who entered into minutes of settlement with the Society. The Court made an order of crown wardship, no access for the purposes of adoption on June 17, 2013. Part of the settlement was an undertaking that the Society would consider kin placements that the counsel was to provide to it by July 3, 2013. Counsel had provided possible kin placement information prior to the settlement (June 13, 2013) but did not do so afterwards, within the agreed upon timeframe.

8The Applicant raised concerns with the Society about her brother in another province as a possible kin placement in July 2013, prior to the expiry of the 30 days she had to appeal.

9On or about July 15, 2013 the Applicant filed an appeal of the crown wardship order. Her appeal documents allege that her counsel entered into the settlement without her consent and that he had forged documents in the proceedings. It alleges that she thought she was signing a document consenting to kin placement with her aunt and uncle and not to crown wardship. The whereabouts of her former counsel are unknown (apparently he has fled) and he is under investigation.

10The Applicant retained counsel on her appeal. She had the same counsel (with a break due to his illness) until approximately July of 2014. Apparently he did not seek a temporary order to vary the crown wardship no access order pending appeal and the order still stands. Sometime after the child was placed in another province, the Applicant asked her lawyer to find out from the Society where her daughter was. According to the Applicant, he had some contact with the Society and told the Applicant that the child was still in the foster home with the Society. She then heard from a relative, that her daughter was placed in another province with her brother and his wife. Because of her relative’s comments about where the child was, the Applicant involved the police who contacted the Society. During this time, the Society had no contact with the Applicant and some contact with her lawyer about the appeal. The Society later had contact with her lawyer in another province about proceedings she started there.

11The Applicant filed her application with the Board on May 30, 2014, alleging that the Society had not heard her or provided her with reasons regarding the kin placement out of province. The Application also alleges that the Society provided misinformation to the police.

ANALYSIS

12The Board must determine what level of service the Applicant was entitled to under s. 68.1(4) 4, which incorporates s. 2(2), and under s. 68.1(4) 5. Further, the Board must decide whether the Society met its obligations under the Act.

13The application identified a number of issues arising out of the Applicant’s relationship with the Society. At a November 28, 2014 pre-hearing the Board heard arguments about its jurisdiction to consider all the issues and decided it had the authority to hear her application regarding two matters. The Board determined that it would decide whether the Applicant was heard when decisions were made and service concerns raised and whether she was provided reasons for decisions relating to alleged misinformation provided by a worker to the OPP about the existence of an appeal and the placement of the child with kin in another province.

14The evidence before the Board was straightforward: the Society made a decision that it should not discuss the child’s placement with the Applicant or seek her input. It felt it had already done so, through her former counsel, prior to the appeal. The Children’s Services Supervisor’s interpretation of the Society’s role and its legal position is that once there is a crown wardship with no access for the purposes of adoption order, the Society does not need to consult with or inform parents of decisions. While the evidence was that the Society retains the discretion to do so, in this case it felt that it was not in the child’s best interests because the Applicant might interfere in the placement.

15There was also some evidence that the Applicant’s “stability” was a concern and that she was “dangerous”, including because she had made some comments including allegedly telling a friend she felt like she could “go postal.” The Board did not receive into evidence the parenting capacity assessment of the Applicant but the evidence was that the Society had concerns about the Applicant’s mental health. The Society also considered the Applicant’s appeal and litigation she commenced in another province seeking the return of her child as interfering with the child’s placement.

16At paragraph 41 of his affidavit, the Child Protection Supervisor stated:

I am aware that [the Applicant] has relentlessly pursued a number of avenues, in addition to the CFSRB, to attempt to have the child returned to her care including but not limited to contacting the local police and RCMP to allege kidnapping of the child. I believe that these relentless and false allegations are driven by [the Applicant’s] mental health.

17In her affidavit, the Children’s Services Supervisor states at paragraph 16.

I am aware that [the Applicant] has attempted through various authorities (OPP, RCMP and court proceeding in another province) to disrupt the child’s placement with kin [in another province].

18These are assessments of the situation made after the decision to move the child was made but are telling in terms of the Society’s decision not to consult with the Applicant.

19The Society’s position in its submissions was that because it had ongoing child protection concerns about the Applicant, it was not appropriate for it to engage her in placement issues and it was not necessary, given the crown wardship no access order. Further, regarding the police, the Society’s position is that it was the Applicant who contacted the police and “manipulated” them and thus the Society had no obligation to seek her input or inform her in that regard.

20The Board is obliged to apply the Human Rights Code. The Board asked the Society if part of its case was that it did not have an obligation to hear the Applicant or provide her with reasons because she had a perceived disability: mental illness. Counsel advised that this was not part of the Society’s case. However, the Board has concerns, based on the evidence of the Child Protection Supervisor that this may have been part of what actually happened. The Board will address these concerns and their implications below.

21The relevant legislation provides as follows:

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.

22In 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.

23The “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. 8, the Board held that:

With respect to s. 68.1(4)5, 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 parent 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.

Right to be heard

24The right of parents and children to be heard under s. 2(2)(a) and thus the Society’s obligation under s. 68.1(4)4 is limited by the clear language of the provision. The section states that parents have a right to be heard, “where appropriate”.

25The Society’s position is in part, that it is not necessary and thus, not appropriate to hear a parent where there is a crown wardship with no access order because she no longer has the rights of a “parent”. Section 2 (2) (a) provides a right to “parent’[s] and to children.

26The child protection section of the Act, defines parent as including the mother: s.37(1). The Society did not argue that the Applicant was not a parent within the meaning of the Act, however, it did submit that, because her parental rights ceased with the order, it was not obliged to engage her.

27Section 63(1) of the Act provides that:

63(1) Where a child is made a Crown ward under paragraph 3 of subsection 57(1) or under 65.2(1), the Crown has the rights and responsibilities of a parent for the purpose of the child’s care custody and control and has the right to give or refuse consent to medical treatment for the child where a parent’s consent would otherwise be required, and the Crown’s powers, duties and obligations in respect of the child, except those assigned to a Director by this Act or the regulations, shall be exercised and performed by the society caring for the child.

28Adoption is the legal event that finally disposes of all parental rights, making the child the legal child of the adoptive parent. The child ceases to be the child of the person who was the parent before the adoption: s.158(2).

29While parental rights cease under s. 63, the definition of parent remains the same and includes “mother” for families involved in child protection services, up to the point of adoption. More significantly, there is nothing in s. 2(2)(a) that explicitly restricts the right to be heard to the time period prior to a crown wardship no access order. The wording of the section leaves the obligation open except where it is inappropriate to hear a parent. The Applicant was a parent for the purposes of s. 2(2)(a) as incorporated into s. 68.1(4)4.

30The complaints provisions of the Act, s. 68.1(4)4 and 5, give parents and children who are seeking or receiving a service from the Society, the right to assert that they were not heard under s. 2(2)(a). The Applicant was receiving a child protection service from the Society. She was the subject of child protection proceedings and had contact with the Society during the time for appealing the crown wardship order to appeal and then, during an active appeal of the child protection proceedings. While the family file was apparently closed, her child was receiving child protection services from the Society that included temporary placement. The opportunity for parents to be heard about services includes in relation to the services that their child is receiving. The Applicant was entitled to be heard as a parent receiving Society services.

31The Act offers no guidance as to when it would not be appropriate to hear a parent. Thus, what is appropriate must be examined on a case by case basis and will depend on the circumstances.

[32] The Board has consistently interpreted the provision broadly, from the perspective of the person being given the opportunity to be heard. The Board has found that there are exceptions, on a case by case basis, where it is not appropriate for a society to hear from a parent. This includes when there has been a history of direct acts or threats of violence and when an Applicant has blocked communication (e.g. S.C. v. Halton Children’s Aid Society (CFSA s.68), 2014 CFSRB 44; (discussed in

N.A. v. Catholic Children’s Aid Society of Toronto, 2011 CFSRB 46 at para. 20.) The reference to being appropriate is the only limiting language in the provision which does not impose any time lines or other qualifiers.

33The Board heard insufficient evidence to conclude that the Applicant made direct threats to the Society. Had her mental health been of sufficient concern to cause the Society to fear for the safety of its workers in communicating, it would have had an obligation to try and accommodate communications. This would have been a process in itself, involving the Applicant as a parent or her representative. Further, the Board did not hear any evidence to suggest that the Applicant would not return calls or meet with the Society: it did not contact her or her lawyer. Thus the Applicant did not block contact. Finally, the existence of ongoing child protection concerns did not mean it was not appropriate for the Society to hear from the Applicant. The Board concludes that it was appropriate to hear the Applicant and provides further details and analysis below.

Placement

34The Applicant makes the argument that the Society illegally placed the child out of province because it did not have the approval of a Director at the Ministry level as required by the Act. Under s. 61(1)(4) of the Act:

61(4) The society having care of a child shall not place the child outside Ontario or permit a person to remove the child from Ontario permanently unless a Director is satisfied that extraordinary circumstances justify the placement or removal.

35The Board does not have to determine the legality of the placement to determine whether the Applicant was heard or provided with reasons for the placement.

36The Children’s Services Supervisor testified that the Society had a list of possible kin homes from the Applicant’s lawyer and it picked one of those homes. On close inspection of that “list” it is actually one kin home (the one in another province) with other kin supporting it. Further, no list came by July 3, 2013 as had been agreed in the undertaking and there was no evidence of Society follow up.

37The Children’s Services Supervisor testified that the Society had heightened child protection concerns in this case which informed the decision not to consult with the Applicant about placement in 2013. It was felt the Applicant would disrupt the placement if she knew where the child was. The kin home also apparently had concerns. The Children’s Services Supervisor offered no specific examples and when asked if there was any evidence of the Applicant disrupting the placement when the child was in foster care, her reply was “no”.

38The Society’s evidence was that once the crown wardship no access order is made, the family file is closed and the case manager is the Children’s Services worker and supervisor. The Children’s Services Supervisor testified that she was “not sure if there was a written policy” that when there is a crown wardship order, no access, the Society will not seek information from the biological parents in planning for the child. The practice is that each case is dealt with individually.

39The Child Protection Supervisor, who had supervised the family file, testified that while the Society can make exceptions and involve parents after a crown wardship no access order, it decided not to do so in this case as it had ongoing concerns about the Applicant’s stability. He was not directly involved but he believed the kin had been reluctant to take the child because they feared the Applicant would interfere in the placement.

40No one from the Society explained to the Applicant why it would not be consulting her about placement.

41The Applicant emailed the Child Protection Supervisor, copied to the worker, on July 10, 2013 setting out concerns about the kin placement in another province. The Children’s Services Supervisor was aware of the concerns, but was uncertain of the timing and was “not aware” if anyone responded. The email was sent prior to the expiry of the Applicant’s time to appeal and shortly after the time when the Society was meant to receive a list of acceptable kin placements under the undertaking that was part of the agreement that would later be challenged, on appeal. The Child Protection Supervisor did not respond to the email. There was no evidence that he took any steps or that anyone from the Society tried to contact the Applicant or counsel upon receipt of that email.

42The email very clearly spelled out that the Applicant would be filing an appeal and that she had “numerous problems in selecting my brother and wife to be selected”, and provided examples of her concerns including allegations her sister in law “suffers from anger management issues and severe depression and mood swings” and telling the Applicant she was going to adopt the child and that the Applicant would never see her child again. The Applicant also described a “dysfunctional and tumultuous family dynamic” and advised the Society that the brother and sister in law are strangers to the child. The email further outlined two other kin options that the Applicant supported. The email states “this letter must be considered seriously.”

43The Child Protection Supervisor’s evidence was that he “wouldn’t have responded” and that the agency would rely on the assessment being made in another province as to the propriety of the placement. He testified to the effect that “frankly, our history of working with [the Applicant] led us to believe that she was not a reliable source of information and we try to be careful.” In terms of considering her views and wishes, he believes the Applicant is “not stable” and “some of her behaviours, dangerous”; however, he denied that he wouldn’t consider the views and wishes of parents who are not stable.

44The Child Protection Supervisor’s concerns about the Applicant’s stability included an incident in 2012 in which the Applicant’s friend, a worker, sent an email to the agency saying that the Applicant was talking about “going postal”. Further he described the Applicant as being “hot and cold” and having mood swings. However, the bottom line in terms of not responding to the email for him appears to have been the final order. He testified that he would continue to work with a parent prior to that even if there were concerns about stability.

45The Board is concerned because there is some indication that the Child Protection Supervisor may have placed some reliance on the Applicant’s mental health in terms of deciding not to get back to her about her placement concerns and to dismiss them as not true. He was not the decision-maker on the file at the time and to be responsive to the Applicant, he should have passed the email on the decision-makers for a response. He seems to have dismissed hearing from and communicating with the Applicant in part, because of a perceived disability.

46The appeal was filed approximately five days after the email. The appeal documents challenge the validity of the consent to the crown wardship order and undertaking and make serious allegations against the Applicant’s former counsel.

47The Children’s Services Supervisor’s evidence was that once there is an appeal, all consultation is done through counsel.

48Following the filing of the appeal, however, which puts in doubt the kin placements ostensibly put forward by the Applicant, there was no attempt made through counsel or otherwise to sit down with the Applicant and hear her concerns or wishes about the placement.

49In September of 2013, the child was placed in another province, without the Applicant’s knowledge.

50Counsel for the Society’s position was that the appeal did not make a difference. The Board disagrees. The appeal legally put the Society’s ability to place the child for adoption on hold. The language used by the Society staff in their case notes suggest that they treated the placement as a de facto adoption placement while it could not legally be so. Section 141.1 of the Act prohibits the Society from placing a child for adoption until the time commencing an appeal has expired or the appeal of the crown wardship order has been finally disposed of. The Society’s witnesses however did testify that the placement was a kin placement and not an adoption because of the appeal. The Society has made it clear that once the appeal is disposed of, it will proceed with the adoption with the kin. This presumes the outcome of the appeal and does not recognize that the Applicant may again play a role in her child’s life. While there is no certainty of the appeal outcome, to exclude the Applicant from input and information in these circumstances is not appropriate.

51Further, the Applicant, as a society client, does not lose all rights to information or engagement once a court process is in place. The Court of Appeal made it clear in Children's Aid Society of Waterloo v. D.D., 2011 ONCA 441, that service obligations relating to the relationship between the Applicant and the Society do not cease when there are active court proceedings. Rather, they are different and run parallel to the proceedings. The Children’s Services Supervisor testified that she was instructed to go through the legal department because of the appeal.

52In C.A.T. v. Valoris for Children and Adults of Prescott-Russell Society, 4 December 2014, to be reported at 2014 CFSRB, the Board made the following determination about communication through counsel at paragraph 31:

On many occasions, with regards to the above discussed concerns as well as the further similar care issues, the Society indicated that it’s response to the concerns was to write a letter to the Applicant’s legal counsel. While this practice is helpful to ensure that the parents’ counsels are aware of decisions made in regards to their clients, it does not replace the Society’s obligations with regards to communication and engagement of parents in decision making process regarding their children’s care.

53Even if counsel was to be the contact or the conduit, this begs the question of whether the Society met its obligations. There was no evidence whatsoever that the Society called counsel to seek input into the kin placement once concerns about the placement were raised or once concerns about the validity of the consent were raised or even to follow up on the fact that no list of acceptable kin placements had in fact been provided, after the order as agreed to in the undertaking.

54The bottom line was that the Society felt it had no obligation to the Applicant. Counsel submitted that because the Society felt it was not in the child’s best interests to have contact with the Applicant, it did not involve her in the process. This goes to the core of the communication issues as between the Society and the Applicant and the Society’s failure to meet its service obligations to the Applicant in a way that was appropriate and respected her voice while still protecting the Society’s position on best interests in terms of its planning for the child. The Society was side tracked by its singular purpose and focus and by its perceptions about the Applicant and, as such, discounted the importance of communicating with her as a parent.

55The Society routinely provides services to parents about whom it has child protection concerns. Those parents are, like all parents receiving services, entitled to be heard under s. 2(2)(a) (where appropriate) and to be given reasons. The existence of child protection concerns does not preclude providing service in a way that respects genuine communication, allowing parents input into decisions. This is distinct from having the parent as decision-maker. The Society as decision-maker is tasked by the legislation with hearing from parents which entails genuinely considering their perspective. This does not mean that the parent will decide; the Society will. However, having input may better equip parents to accept decisions or to make informed decisions about whether to challenge them, consistent with this Board’s jurisprudence on the importance of being heard and given reasons. The level of information given to a parent to obtain input may also depend on the circumstances but a blanket exclusion of all parents from the process because of child protection concerns is inconsistent with the existence of the obligation under s. 2(2)(a).

56The Society was obliged to hear the Applicant about the decision to place her child out of province with kin. Even if the Society was entitled to rely on the settlement agreement and undertaking of the Applicant’s former counsel, once he did not send in names of kin as required by the agreement, the Society should have followed up with the Applicant or counsel. The Applicant testified that she was not aware that the kin in question had been put forward by her former counsel as a possibility. She opposed this placement. In any event, this option was put to the Society before the undertaking and did not form part of the settlement agreement which mandated names be forwarded by July 3, 2013. On July 10, 2013, the Applicant raised concerns about this placement prior to the expiry of her appeal deadline. No one responded to her concerns. The Applicant then filed an appeal that called into question the validity of the consent and the undertaking and the overall plan. No one contacted the Applicant to follow up at the time when the decision was clearly being made to place the child with this family. No one requested a meeting with or clarification from the Applicant or her lawyer and no one acknowledged her concerns.

57As the Society had decided to communicate through counsel, this could have been done, through counsel who could have facilitated the Applicant’s input – whether as an accommodation or as a means of her interests being represented. There was simply no attempt made to deal with their concerns or to keep the Applicant informed or engaged to any extent. She had counsel on the appeal and the Society chose not to seek input through him.

58In terms of the level of information that was appropriate to enable them to hear from the Applicant and preserve the child’s interests, the Society could have posed questions like: We have been given the names of three kin to speak to by your former lawyer, (this might have led to her saying she was unaware of this and opened up that discussion). In any case, you have expressed concerns about one of the kin, do you have any more input on that? What is your input in terms of other kin options? Do you have any other suggestions?

59This type of dialogue would have permitted the Applicant to have input, without revealing any more information than was needed.

60The Society failed to meet its obligation to hear the Applicant about the child’s placement with kin in another province.

Reasons: Generally and Regarding Kin

61When it makes its decision, what the Society must tell an Applicant in terms of reasons is a separate issue from hearing an Applicant. The Society’s obligation to provide reasons exists, without qualification in the statutory provision, for decisions that affect the interests of a person seeking or receiving a service. This obligation extends to persons who are not parents and thus would extend equally to parents and people whose parental rights were no longer in play. There is no question of whether providing reasons is “appropriate”, as with s. 2(2)(a). The obligation to provide reasons is mandatory. The Society’s argument that this obligation was not engaged, fails.

62If the Society made a decision not to involve the Applicant, as it did, and not to tell her where the child was placed, as it did, it was obliged to inform her of its reasons for its decision that it was not appropriate to hear her or to tell her where the child was placed. This was never done. This could have led to a resolution of concerns, through counsel or otherwise, but at the very least would have let the Applicant know where she stood.

63The Society conceded that it did not provide the Applicant with its reasons for the placement with kin in another province.

64Since the Society’s obligation to provide reasons was mandatory and the Society provided no reasons for its decisions regarding the kin placement to the Applicant, the Society failed to meet its obligations to the Applicant under s. 68.1(4)5.

Police

65The Applicant acknowledged that she contacted the police to see if the child was still in the foster home. She did so after her relative told her the child had been placed with the out of province kin. She contacted an officer she knew (and whom the Society alleges she manipulated) and the matter was passed on to another officer. The Society became aware of the contact when it learned that the police had gone to the foster home. How the police handled the inquiries from the Applicant is not a matter for the Board. The question for the Board is whether, in dealing with the police, the Society met its obligations to the Applicant. The Applicant’s complaint as identified by the Board focuses on the question of alleged misinformation. The Applicant does not seem concerned that the Society spoke to the police (which would be a natural consequence of her contacting the police) but more with what she alleges is the decision of one worker to allegedly tell the police that the worker was not aware there was an appeal or that the Applicant had not filed an appeal, when she had in fact done so. If true, this decision could impact the Applicant’s interests in terms of how the police would deal with her and her concerns about the child’s safety and whereabouts.

66Unfortunately, the worker who is alleged to have made the comment was not available as she was on leave and the Board did not hear direct evidence from her. However, it was the Society’s evidence that two other workers were the ones who spoke to the OPP and the Society provided their case notes through their supervisors but did not call them as witnesses. The Board did not hear direct evidence from the officer.

67The Society’s evidence, based on a case note, was that on April 22, 2014, the Children’s Services Worker called the OPP because an officer had gone to the foster home. The officer advised that the Applicant had contacted the police using a false name. The Applicant gave the Board an explanation for her use of the false name. The Children’s Services Worker told the officer that the child was a crown ward without access for the purposes of adoption and gave the dates of the final orders. Her case notes indicate that she did not mention the appeal to the officer. The officer told the Children’s Services Worker that the Applicant had advised him there was an appeal. According to her notes, the Children’s Services Worker neither confirmed nor denied the existence of an appeal,

68Again, according to case notes, the same OPP officer called the Society on May 17, 2014 and spoke to an after-hours worker. The officer told the after-hours worker that the Applicant had told him that she had an appeal and he had confirmed this with the court. The Applicant was alleging the Society had acted illegally in placing the child out of province while an appeal was pending. He wanted to know if an adoption had taken place. The after-hours worker told him that there was a final order of crown wardship for adoption purposes and that it appeared the child was placed with family in another province but she wasn’t sure “where they are at in the adoption process”. She suggested to the officer that he follow up with the child’s worker or supervisor. The Children’s Services Supervisor testified she found no case notes indicating the officer followed up with the Children’s Services Worker and he did not contact the Supervisor.

69The only evidence before the Board about a worker telling the officer there was no appeal or that she wasn’t aware of an appeal was what the Applicant alleges the officer told her which are also reflected in notes made by the Applicant of a call with the officer. A later taped recording of the officer sheds doubt on either what he had told her before or on his memory of events. Thus, without hearing directly from the officer, the Board cannot draw any conclusions on the balance of probability. The Society’s case notes, while not direct evidence, are contemporaneous to the conversation with the OPP and thus, more reliable.

70Based on the evidence before it, the Board had insufficient evidence to support a finding that there was a decision made to provide misinformation to the police about the appeal. Therefore, no obligation can attach to a decision that wasn’t made and this aspect of the complaint is dismissed.

71The next question for the Board is whether the Applicant raised her concerns about the possible misinformation as a service concern with the Society and, if so, was she heard about this concern and given reasons for any decision made about how to address it. The Applicant’s uncontradicted evidence was that she made a call to the worker she thought had spoken to the police to raise her concern; that she left her a message and never heard back from her. The worker did not testify and the Society did not lead or seek to lead any other evidence to contradict the Applicant’s testimony. Again, had someone responded to the service concern, matters could have been clarified for all. Therefore, the Board finds that the Society did not hear the Applicant’s service concern about possible misinformation to the police and in not responding, did not provide her reasons for any decisions taken in that regard.

72The Society did not meet its obligations to the Applicant under s. 68.1(4).4 and .5 regarding this service concern.

Remedies

68.1(7) After reviewing the complaint, the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint; or

(f) make such other order as may be prescribed..

73In D.B. v. Children’s Aid Society of Oxford County and Family and Children’s Services of Guelph and Wellington County, 2013 CFSRB 41 at para. 79 the Board determined that:

Ordering a Society to comply with “any other requirements under this Act”, must by necessary implication, mean ordering a Society to hear an Applicant, otherwise, the right to be heard contained in the Act, holds little meaning.

74The Applicant is entitled to be heard about her child’s out of province kin placement. She needs an appropriate means of doing so. The Board finds that in all of the circumstances, the Society must hear the Applicant, through written communications. This will leave a transparent record for all concerned as to what the communication between the parties was and will permit the Applicant to have her say. Not only must the Society receive the Applicant’s input, it must seriously and genuinely consider her perspective about where the child should be placed, and why, and her views as to where the child should not be placed and why not. The Society must then provide a detailed written response to the Applicant, as set out below.

75In terms of the police contact, the Board could order the Society to respond to the Applicant’s service concern about potential misinformation being provided to the police. However, given our findings with respect to whether the police were in fact misinformed, a response is not needed from the Society at this time. The Society has provided a full log of its contacts with the police and the Applicant now has that information. Therefore, the Board will not make any order regarding this issue.

ORDER

76The Applicant will have until February 11, 2015 to put in writing, in a letter addressed to the Society’s Executive Director, her views and wishes about her daughter’s placement with kin. She can identify which kin placements she supports and why and which kin placements she does not support and why in as much detail as she sees fit.

77The Society shall have until February 25, 2015 to seriously and genuinely consider the Applicant’s input, to seek any further clarification from her, in writing and to provide the Applicant with a detailed written explanation about which kin placement it will choose and why, addressing all areas of concern raised by the Applicant and responding to those concerns and, explaining why it ruled out other kin placements, with reference to any points made about those placements by the Applicant.

78In complying with this order, the Society must be mindful that it must carry out its obligations to hear and provide reasons in a manner that respects its obligations under the Human Rights Code.

CONFIDENTIALITY ORDER

79Pursuant 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, except with an order of the Court or the Board, as appropriate.

SHEENA SCOTT

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Sheena Scott

Vice-Chair

GAIL GONDA

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Gail Gonda

Board Member