M.W. v. Children’s Aid Society of Toronto, 2015 CFSRB 53

CHILD AND FAMILY SERVICES REVIEW BOARD

M.W.

v.

Children’s Aid Society of Toronto

REASONS FOR DECISION

Date: November 27, 2015

Citation: 2015 CFSRB 53

Indexed as: M.W. v. Children’s Aid Society of Toronto

(CFSA s.68)

INTRODUCTION

1M.W. (the “Applicant”) filed an application with the Child and Family Services Review Board (the “Board”) on September 10, 2015, pursuant to sections 68.1(4)4 and 68.1(4)5 of the Child and Family Services Act, R.S.O. 1990, c.C.11, as amended, (the “Act”) regarding a matter relating to services sought or received from the Children’s Aid Society of Toronto (the “Society”).

2The Applicant alleges that the Society has not listened to his service concerns or heard him when decisions were made and has not provided him with reasons for decisions that affected his interests, regarding his involvement with the Society during the period between January 2015 and the submission of his application to the Board on September 10, 2015 and with respect to the following issues:

1. Society’s failure to provide him with health information about his children.

2. Society’s failure to invite him/include him in the plan of care meetings.

3. Society’s failure to include him in the decision process about the children’s school choice.

4. Society’s exercise of its discretion in relation to access visits with his children; regarding scheduling, frequency, duration, supervision and the Society’s failure to take action for him to maintain a positive, beneficial and meaningful relationship with his children through access.

5. Society’s decision to not assign a new family services worker and response to his concerns about the worker’s actions.

6. Society’s failure to explain its expectations in order for the Society’s involvement with him to be concluded.

3The Society argued that it had satisfied all of the requirements under the Act with respect to having heard the Applicant and having provided him with reasons for decisions it made.

4An oral hearing in this matter was held on November 17 and 20, 2015. The Board reserved its decision. The Board finds the Society failed to listen to the Applicant’s service concerns and to hear him when decisions were made and that the Society failed to provide the Applicant with reasons for decisions it made. These are the reasons for this decision.

BACKGROUND AND POSITIONS

5The Applicant is the father of 3 children: [Child 1] born […], 2003, [Child 2] born […], 2003 and [Child 3] born […], 2010. The parents separated in February of 2014 and the children remained in the mother’s care at that time. From November 2014 to August 2015, the children were in the care of the Society. The children’s primary residence has been with their mother since August 2015, when the Society placed the children back in her care pursuant to a temporary supervision order.

6The Society has been involved with the family since February 2014 following a report of concern from the mother about domestic violence. At that time, the Applicant was charged with assault against the mother and was subject to bail conditions precluding him from having direct or indirect contact with the mother.

7On November 6, 2014, the children were placed in the Society’s care due to concerns that the parents were not complying with the Society’s expectations regarding contacts between the Applicant, the mother and the children.

8The Board heard testimony from the Applicant and from three representatives of the Society: [ ] the supervisor, [ ] the children services worker and [ ] the family services worker. Both parties also filed a number of supporting documents that will be referred to in these reasons.

ANALYSIS

9The Board has authority to determine if the Applicant was heard when he raised service concerns with the Society, and when decisions were made that affected his interests. The Board also has the authority to determine if the Applicant received reasons for decisions made that affect his interests.

10The Board’s authority and the Society’s obligations are found in the following sections of the Act:

1.(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:

3. To recognize that children’s services should be provided in a manner that,

iv. includes the participation of a child, his or her parents and relatives and the members of the child’s extended family and community, where appropriate.

2(2) Service providers shall ensure (a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.

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

(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.

11In 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.

12The “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.

1- The right to be heard when concerns are raised and when decisions that affect the Applicant’s interests are made.

13The Applicant was concerned that he was denied any participation by the Society with regards to the care provided to his children while they were in care of the Society. He felt he did not receive the same level of information as was shared with the mother and that he was not consulted when decisions were made about his children. His concerns related to the health of his children, the choice of the school they attended and his access visits with his children. The Applicant was also concerned that his opinion was disregarded by the Society when he raised concerns about the assigned family services worker.

14The Applicant testified that, until he received the disclosure of his file in preparation for this hearing, he had not been provided with any information about his children’s health or any medical appointments they attended except one letter on February 11, 2015 that informed him about an upcoming appointment for two of his daughters. He indicated that he was not asked to provide family health history and that he was not informed when his children were sick or injured. He indicated that the only information he managed to obtain was from his own efforts contacting the health care providers directly.

15The Applicant also raised concerns regarding the Society’s decision to register his children in a public school when two of the three had previously attended a catholic school. The Applicant testified that he was never consulted on this issue.

16In cross examination, the Society asked the Applicant whether he had ever called his worker to ask for updates about the health of his children. The Applicant testified that he had not called the worker about this issue specifically but that he had asked for general updates about his children on a number of occasions and to a number of different Society representatives from workers to supervisors and directors.

17The Society, through the testimony of its three witnesses raised the issue of the difficulty in reaching the Applicant to provide him with information. The Society indicated that the phone number provided by the Applicant was often unavailable, that the voice mail box was full or that the outgoing message indicated that the Applicant was not available.

18However, the Board heard testimony and finds that the Society was provided with a number of different means by which to be in contact with the Applicant. The Society had an email address at all times, it also had a residential address, as well as permission to share any information with the Applicant’s common law partner evidenced by signed consents provided to the Society. The Board is not satisfied that the Society exhausted all available means of contacting the Applicant to provide him with information about upcoming appointments or to provide him with details about the appointments where he did not attend.

19Moreover, in the one case where the Society did send a letter to the Applicant to inform him about two upcoming appointments on February 11, 2015, instead of including all available details about the purpose of the appointments, the time and location, etc, the Society requested that the Applicant contact a worker to advise them if he intended to attend the appointments. It would only be then that he would be provided with this additional information. Given the known difficulties the Applicant experienced engaging with the assigned worker, this added an unnecessary barrier to him being provided with adequate information about his children’s health.

20The children services worker was asked in cross examination whether it was one of her responsibilities to inform parents about their children’s health and other relevant information, while they are in care of the Society. She answered that this information is provided through the plan of care meetings.

21The Society’s obligations relating to the inclusion of parents into the elaboration of plans of care for children in care and the information to be considered in these plans is stated in Regulation 70, R.R.O 1990 under the Act.

111.(2) Every placing agency shall complete an assessment of each child that it places in foster care within thirty days of the child being placed in a foster home.

(3) An assessment referred to in subsection (2) shall set out,

(a) the special needs of the child;

(b) the child’s legal status;

(c) available identifying information concerning the child;

(d) the child’s family history; and

(e) the circumstances necessitating out of home care for the child.

(4) The licensee, within 30 days after placement of a child in a foster home, shall,

(a) review the assessment prepared under subsection (2); and

(b) participate in the development and finalization of a foster plan of care with,

(i) the placing agency, where the placing agency is not the licensee,

(ii) the foster parents,

(iii) the child, where the child is 12 years of age or over, and

(iv) the child’s parents, where appropriate.

22The Board heard testimony and finds that the children’s mother was invited and participated in these meetings. The Applicant, however, was never invited to plan of care meetings and, as a result, was not provided with the information relating to his children. He was not consulted about any of the information that he could provide regarding his side of the family’s history and, as a result, he was not provided with the opportunity to have some degree of influence in the process.

23A good example of the missed opportunity in that regards is the fact that the children were registered in public schools without consulting the Applicant about his preferences. The Society was aware that two of the Applicant’s three daughters attended a catholic school before coming into care as the Society worker had visited them there. As well, the Applicant had requested that the family file be transferred to the Toronto Catholic Children’s Aid Society. All this information however, was ignored by the Society and did not result in any discussions with the Applicant about his views regarding his children’s education placement.

24The Society’s witnesses testified that one of the reasons the Applicant was not invited to the plan of care meetings was that there was domestic violence in the relationship between the mother and father and that, for a period of time, there were bail conditions that prevented the father from having direct contact with the mother. There were however, various periods where these conditions did not apply and the Society still did not invite the Applicant to meetings.

25In her testimony, the family services worker explained that the responsibility to set up plan of care meetings and invite participants is shared between the family services worker and the children services worker. When asked whether there was a discussion about who would invite the Applicant, she testified that there was never such a conversation. She testified that the mother and the Applicant could not be in the same room and that there was never a conversation about how or when a separate plan of care meeting could be convened for the Applicant.

26When the children services worker was asked specifically why separate meetings were not convened, apart from the mother, to provide the Applicant with an opportunity to be heard about his children’s care and to provide input into the decisions made about them, she answered that “all the conversations we had with him were contentious so we were taking it piece by piece”.

27There was an attempt to provide the Applicant with some information about the children on February 3, 2015, almost three months after the children were placed in the Society’s care. On that day, a telephone call was scheduled for that purpose at 2:00 pm. That afternoon at 1:17 pm, the Applicant sent an email to the children services worker voicing some concerns to be discussed during that call. The Society decided to cancel the scheduled call that day and to instead provide a response in writing the next day.

28The letter sent February 4, 2015 by the Society provided the Applicant with some answers to the concerns he raised in his email. However, the letter did not constitute an opportunity for active participation for the Applicant. The letter did not provide him with the opportunity to have some degree of influence in the process. This could have been achieved with the scheduled telephone call on February 3rd, 2015 where the Society could have engaged in genuine communication, giving the Applicant the opportunity to have input into decision making and to have enough information to make informed responses to, or accept the Society’s decisions rather than receive a list of information stated as foregone conclusions.

29The Society did make one attempt to engage the Applicant in genuine communication. A meeting was held in December 2014 between the Applicant and the supervisor [ ] where some discussions took place regarding the Applicant’s concerns, mostly about his request for a change of family services worker. The Applicant attended the meeting 30 minutes late so, after 45 minutes, the supervisor ended the meeting and invited the Applicant to attend a follow up meeting where the discussion could continue. The Applicant did not show up for that second scheduled meeting.

30The Applicant was asked in cross examination why he did not attend at the follow up meeting with the supervisor. He explained that after the initial meeting, he felt there was no point as it was apparent that nothing he said made any difference in the supervisor’s opinion. The supervisor testified she followed up by letter inviting the Applicant to contact her.

31The Applicant testified that he again raised his request for a change of worker with another supervisor [ ] on March 19, 2015 and this request was forwarded to the Branch Director [ ]. A month later, on April 20, 2015, the Applicant still had not received any response or follow up from [Branch Director] and, upon his repeated request for an answer, the issue was finally referred back to the original supervisor [ ] by [Branch Director].

32In response, the Applicant requested a meeting with [supervisor] in the community rather than at the Society’s office. Contrary to what she had indicated to him in her letter in December 2014, the supervisor responded that she would not meet with the Applicant. She testified she felt pulled into decisions that needed to be redirected to the assigned workers. However, she was aware that one of the Applicant’s greatest difficulties moving forward was his strained relationship with the assigned family services worker [ ] as was discussed in the December 2014 meeting. The issue was then passed again to the children services worker [ ] who had no authority to address most of the Applicant’s concerns. Moreover, in his communications with [children services worker], when raising any concerns, her response was consistently to indicate she had to refer the issue back to the assigned family services worker [family services worker] for any decision. This left the Applicant feeling like he was constantly at the mercy of the one person about whom he had raised concerns and made him feel that his concerns had not been heard.

33The last, and most important, issue of concern for the Applicant regarded the setting up of his access visits with his children. Again, the Applicant testified that he encountered repeated difficulties in discussing his concerns relating to the scheduling of access visits and the supervision of the visits. He testified about initial barriers to attending access visits as the times allotted directly followed the mother’s access visits and, there was a no contact order in place at that time that prevented him from attending. Subsequently, the Applicant testified about difficulties with scheduling where the Society did not take into consideration his requests for accommodation because of family responsibilities and his repeated requests for longer visits.

34Again, rather than engage in meaningful conversation with the Applicant to address these issues, the Society resorted to correspondence to address the concerns. The emails and letters sent to the Applicant included increasingly restrictive conditions to his attending access including a letter on September 11, 2015 directing him to call in by 10:00am the day of the visit to confirm his attendance despite the Society being aware that he did not have a telephone available at all times as he shared his phone with his common law partner, to a directive to attend at access visits without his common law partner and her children.

35The Applicant responded to this letter by email on September 12, 2015 indicating he disagreed with the restrictions imposed on his access. He requested that all following correspondence be provided to his legal counsel involved in the Child Protection Proceedings as he felt bullied and unfairly treated.

36The Society replied to his email by letter to his legal counsel on September 18, 2015 and the issue of access visits has now been brought before the court by way of motion.

CONCLUSION

37The Board finds that the Society failed to provide the Applicant with an opportunity to be heard and represented when decisions affecting his interests were made. Section 1(2) 3 (iv) of the Act mandates that a Society provide services in a manner that includes participation of the parents: not only the primary caregiver as determined by the Society, but both parents as well as the child’s extended family and community, as appropriate. For a Society to assert that a parent has not raised the issue specifically is not an appropriate response or fulfillment of this obligation. The Society must take positive steps to identify appropriate methods to engage both parents in their services, even when it is challenging to do so as it was the case with the Applicant.

38On many occasions the Society indicated that its response to the Applicant’s 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.

39Having a child removed from one’s care is a very stressful and challenging period for any parent. Despite their personal difficulties that resulted in such a removal, parents face a high level of anxiety not having frequent contact with their children and having strangers care for them. This anxiety can be heightened, as was the case for this Applicant, when parents struggle with behavioural challenges or unresolved past experiences with the Society. While it may appear to Society workers that a parent is “just complaining”, the concerns raised should be viewed as a heartfelt desire to ensure their children are appropriately cared for while in the Society’s care. Additional steps can be taken by Society workers to reassure parents that their concerns have genuinely been heard and taken seriously. Moreover, when faced with challenging behaviour that affects the parent’s ability to communicate in an effective manner by displaying aggression, such as was the case with this Applicant, the Society has an obligation to put in place mechanisms to train its workers in effective communication to address these barriers in a non-oppressive and respectful way. Ignoring the parents or blaming them for the communications difficulties falls short of the Society’s obligations under the Act.

40The Applicant was provided with information about his children’s health through the file disclosure in preparation for the hearing so the Board does not need to make an order in that regard.

41The issue of access for the Applicant has now been brought to the Court by way of a motion. The Board therefore can no longer make any order in that regard.

42Accordingly, the Board orders within 10 days of these reasons being issued:

A. That a Director meet with the Applicant, and his legal counsel if he wishes, to discuss his request for a new worker and to communicate his or her decision to the Applicant in writing with sufficient information regarding the factors that were taken into account in making the decision to allow him to understand why and how the decision was made, within 10 days of the meeting.

B. That a Director meet with the Applicant, and his legal counsel if he wishes, to discuss the Society’s request that the Applicant attend for Domestic Violence programming despite the criminal charges having been withdrawn in that regards and to communicate his or her decision to the Applicant in writing with sufficient information regarding the factors that were taken into account in making the decision to allow him to understand why and how the decision was made, within 10 days of the meeting.

CONFIDENTIALITY ORDER

43Pursuant 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

Vice-Chair