CHILD AND FAMILY SERVICES REVIEW BOARD
S.V.D. and M.V.D.
v.
Children’s Aid Society of the Counties of Stormont, Dundas and Glengarry
REASONS FOR DECISION
Date: October 7, 2015
Citation: 2015 CFSRB 47
Indexed as: S.V.D. and M.V.D. v. Children’s Aid Society of the Counties of Stormont, Dundas and Glengarry (CFSA s.68)
INTRODUCTION
1S.V.D. and M.V.D, the Applicants (the “Applicants”) filed an Application pursuant to section 68(5) of the Child and Family Services Act, R.S.O., 1990, c.C.11, as amended, (the “Act”) on August 13, 2014. The Applicants were dissatisfied with the Internal Complaints Review Panel (the “ICRP”) process conducted by the Children’s Aid Society of the Counties of Stormont, Dundas and Glengarry (the “Society”) on July 31, 2014 and its outcome.
2The Board determined that the issues to be heard would focus on the ICRP pursuant to section 68(5) of the Act and whether the ICRP followed the legislated process and provided the Applicants with reasons regarding its review of their complaint related to the decision made by the Society to close their home as a foster home following a child protection investigation.
3The Applicants subsequently filed an application pursuant to section 144(3) of Act, on November 3, 2014, asking the Board to rescind the decision of the Society refusing their adoption application regarding a specific child.
4The section 144(3) and s.68(5) applications were heard together given the overlapping facts and issues. These applications were further joined with another application pursuant to section 144(3) filed by a second set of applicants regarding the same child. The Board’s findings and reasons on the s.144(3) applications were provided in a separate decision dated September 21, 2015, Applicant A/ Applicant B and Applicant Y/ Applicant Z v. The Children’s Aid Society of the United Counties of Stormont, Dundas & Glengarry (CFSA s.144 and s.68), 2015 CFSRB 42.
5The Board scheduled a hearing to deal with the Applicants’ s.68(5) application and the two s.144(3) applications. A hearing was held in person on January 20, 21, 22, 23, 28 and 29; February 19 and 20; April 8, 9 and 10; May 6, 7, 8, 20, 21 and 22 and June 23, 24, 25 and 26; July 14, 15 and 16; and August 4, 5 and 6; and via teleconference on August 24, 2015.
6The Board finds that the ICRP process did not provide the Applicants with reasons for the decision to close their home as a foster home.
7The Board’s reasons for this decision follow.
BACKGROUND
8On July 3, 2014, the Society wrote to the Applicants and informed them that their home was closed as a foster home and outlined their reasons for this decision.
9The Applicants outlined a detailed response to the July 3, 2014 letter and agreed to participate in an ICRP meeting with the Society that was held on July 31, 2014 to review the matter. The panel provided a written response to the Applicants on August 5, 2014.
10The Applicants were not satisfied with the outcome of the ICRP and applied to the Board as a result.
ANALYSIS
11The Board has authority to determine if the Society complied with the regulations regarding the ICRP process and whether the Applicants were given reasons for decisions made by the Society in the course of the ICRP process.
12The Board’s authority and the Society’s obligations relating to the ICRP process are found in the following sections of the Act:
68(1) A person may make a complaint to a society relating to a service sought or received by that person from the society in accordance with the regulations.
68(5) If a complaint relates to one of the following matters, the complainant may apply to the Board in accordance with the regulations for a review of the decision made by the society upon completion of the review procedure:
A matter described in subsection 68.1(4) including the following matters:
Allegations that the society has failed to provide the complainant
with reasons for a decision that affects the complainant’s interests.
13The “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.
14Ontario Regulation 496\06, paragraphs 1-9 inclusive, applies to the ICRP process. The Applicants did not complain that the Society failed to comply with the regulations as they relate to the scheduling of the ICRP, the composition of the panel and the timing of the written summary. Rather their complaint related to the outcome regarding reasons for the Society’s decision to close their home and the Board’s analysis will focus on this aspect of the ICRP.
15In conducting its analysis, the Board relied on the following documents:
the Society’s letter to the Applicants dated July 3, 2014 in which they were informed about its decision to close their home;
a written response to this letter prepared by the Applicants and shared with the ICRP;
a Fact Sheet prepared by the Applicants for the purposes of the ICRP;
a set of Internal Review Panel Minutes of the ICRP dated July 31, 2014 prepared by an executive assistant who attended the ICRP; and,
a written summary of the ICRP dated August 5, 2014 provided to the Applicants and signed by the ICRP members.
The Board also heard testimony from the Applicants who both attended the ICRP. The ICRP members for the Society consisted of two Board members and a service manager who chaired the ICRP meeting. The Board did not hear testimony from any of the Society’s participants on the ICRP. However, during the parts of the lengthy hearing related to the placement of the child, the Board heard testimony from Society’s witnesses that also reflected on its reasons for the closure of the Applicants’ home and that is taken into account in these reasons.
16The Applicants’ testimony was that the ICRP response was no response and that they did not receive answers to the questions they had posed in their response to the Society’s July 3, 2014 decision letter. They testified that the ICRP clarified that its role was to listen and that nothing could be changed regarding the Society’s decision.
17The reasons that the Society gave for its decision to close the Applicants’ home as a foster home were outlined in the letter dated July 3, 2014 and are as follows:
a. The Applicants were not able to follow expectations;
b. The Applicants were unable to work with the Society;
c. The Applicants were unable to understand that they were being called upon to work as foster parents and not medical professionals;
d. The Applicants were unwilling to trust the Society when the Society determined on June 30, 2014 that the child did not need medical attention;
e. The Applicants engaged in highly unacceptable and inappropriate behaviour as reported to the Society which demonstrated that they were unable/unwilling to understand their role as foster parents.
18The ICRP Minutes of July 31, 2014 stated that the authority of the panel was to focus on determining if the Society’s policies and procedures were properly followed and to resolve the concerns of the Applicants if possible. The summary letter dated August 5, 2014, reiterated the role of the ICRP and further indicated that it would clarify and correct any of the information on record and provide solutions to the Applicants’ complaints if possible.
19The ICRP dealt with a number of detailed matters that did not specifically relate to the reasons for the closure of the Applicants’ home. In the written submissions prepared by the Applicants, it is clear that they are challenging the validity of the Society’s reasons for the closure of their home. The ICRP’s written response is silent on this point. It does speak to each of the more detailed concerns put forward by the Applicants and attempts to address each of them. In many of these instances, the panel concludes that it either did not have the information available to assess the concern, or the concern was a matter of opinion that could not be confirmed or denied or the concern was one that it could not address for confidentiality reasons.
20The Applicants were able to put forward a detailed account of the basis for challenging the validity of the Society’s reasons for its decision in the course of the lengthy hearing that focused primarily on the placement of the child. In addition, the Board heard from Society witnesses in the course of the hearing who reflected on the basis for the Society’s reasons for its decision to close the Applicants’ home. The Board’s decision and its reasons regarding what placement was in the best interest of the child, the primary focus of the lengthy hearing, reflected on the validity of the reasons for the Society’s decision to close the Applicants’ home and concluded that they were not valid although that was not the primary matter to be decided.
21As stated previously, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation including an examination of the timeliness and the level of detail provided. A parent or complainants 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. By extension, the reasons for any decision need to take into account challenges to the validity of a society’s reasons that may be posed by a complainant in order to fully meet the test of being sufficient. That is, are the reasons for a society’s decisions: sound, just, well founded, based on logic or fact, and reasonable given all available information. Otherwise, societies have a license to make decisions that are unsound, unjust, not well founded and unreasonable.
22The Society’s written reasons that were provided to the Applicants in its letter of July 3, 2014 and in the ICRP’s summary of August 5, 2014 did not provide sufficient information to allow the Applicants to understand why the decision to close their home was made that took into account the challenges raised by the Applicants regarding the validity of those reasons. These were not addressed by the ICRP. However, they were addressed through the lengthy hearing process and in the Board’s decision and reasons regarding the placement of the child.
23The Board believes that the ICRP process did not clarify the reasons that the Society had for closing the Applicants home. It confirmed the decision of the Society made on July 3, 2014 to close the home but did not address the challenges posed by the Applicants regarding the validity of the reasons to do so. Although, the Society provided the Applicants with written reasons for its decision, the Board concludes that the reasons did not meet the test of sufficiency, i.e., were these reasons valid as defined above based on all available information.
24It would serve no useful purpose to return the matter to the Society to provide sufficient reasons given the lengthy hearing that focused primarily on the decision regarding the placement of the child and the position taken by the Society regarding the Applicants. The reason the Society made the decision it did was that it had the legal authority to do so and it clearly expressed that view in the proceedings without regard to whether its reason met any other test of sufficiency. This case is an example of the relatively unfettered power of societies as perceived by complainants who come to the Board seeking justice despite the Board’s limited jurisdiction in such cases.
CONCLUSION
25The Board concludes that the Applicants were not given reasons for the closure of their home as required under sections 68.1(4) 5 of the Act by the Society through its ICRP process including the written summary dated August 5, 2014.
Board Decision
26Section 68(10) of the Act empowers the Board to make orders as follows:
Upon completing its review of a decision by a society in relation to a complaint, the Board may,
(b) in the case of a review of a matter described in subsection 68.1(4), make any order described in subsection 68.1(7) as appropriate;
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) dismiss the complaint; or
(e) make such other order as may be prescribed.
(f) order the society to provide written reasons for a decision to a complainant;
27The Board does not make an order to return the matter to the Society given that it was able to deal with the matter in its decision and reasons related to the placement of the child. The Board has the authority in theory to order a society to provide written reasons that meet the test outlined in these reasons, and in particular reasons that are valid given all of the available information. In practice, under the usual set of circumstances related to section 68(5) applications regarding a society’s obligation to provide reasons, there is no mechanism to enforce such an order.
CONFIDENTIALITY ORDER
28Pursuant 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.
NATHALIE FORTIER
_____________________
Nathalie Fortier
Presiding Member
GAIL GONDA
_____________________
Gail Gonda
Board Member
Dated at Toronto, Ontario on this 7th day of October, 2015.