M.A. v. Children’s Aid Society of Toronto, 2015 ONCFSRB 7

CHILD AND FAMILY SERVICES REVIEW BOARD

M.A.

v.

Children’s Aid Society of Toronto

REASONS FOR DECISION

Date: February 6, 2015

Citation: 2015 CFSRB 07

Indexed as: M.A. v. Children’s Aid Society of Toronto (CFSA s.68)

Introduction

1The applicants are the grandparents of two boys. They had access to their grandchildren but this stopped when the society apprehended the boys. The applicants filed an application with the Child and Family Services Review Board (“Board’) under s. 68.1 (4) 5 of the Child and Family Services Act, R.S.O. 1990, c. C.11 as amended (the “Act”) alleging that the society failed to give them reasons for the decisions to reduce and then deny access to the children.

2The Board heard the application on January 19, 2015. The Board had to determine whether the society provided the applicants with meaningful reasons. The Board has determined that the society fell short of meeting its obligation to provide reasons. The reasons for this decision and the Board's order follow.

Background

3The applicants are the maternal grandparents of boys aged 6 and 7 (“children”). The applicant grandmother applied to be a kin placement for the children after they were taken into care in 2010. She was refused because she and her former spouse (who are the parents of the children’s mother) had a history with the society involving their care of the children’s mother. The children were placed with the paternal grandparents in October, 2013.

4The applicants were denied standing in the ongoing child protection proceedings. The applicants arranged access through the paternal grandparents, which was ultimately supported by the society to provide respite to the paternal grandparents. From November 2013 to September 2014 the applicants saw the children every other week.

5In September, 2014 the children were removed from the care of the paternal grandparents and placed in foster care. The society decided to reduce access to the applicants and then to stop it altogether. The temporary court order gives the society discretion over who will have what access.

6The applicants applied to the Board on October 10, 2014. Their application was found eligible on October 15, 2014 with respect to whether the Society provided them with reasons regarding their request for access to their grandchildren.

7The applicants are aware that the Board cannot deal with who gets access and that only the court can order access.

Analysis

8The Board must determine if the society met its obligation to provide reasons under s. 68.1 (4) 5. The Board has decided that despite some genuine efforts to do so, the society has not met its obligation to provide meaningful reasons.

9The relevant legislative provision is:

68.1(4). Matters for Board Review

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

(5) Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

10In 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.

11The “right to reasons” under the Act, means a right to a meaningful explanation about decisions that affect the applicants’ 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.

12The children were apprehended from the parental grandparents on September 19, 2014. The worker for the children made a decision to reduce access to the applicants to every 6 weeks. The applicant grandmother testified that she received an email containing the decision. No one produced the email. There was no evidence that the email contained any reasons for the decision to reduce access. When she got the email, she called the society on October 7, 2014 only to learn that a decision had been made that day to “terminate” the applicants' access to the children completely.

13The supervisor testified that the decision had been made at an integrated service plan meeting involving the branch director, the supervisor, the family services worker, children’s services worker, and the kin worker. The society made the decision because of the family conflict the children had been exposed to, to provide stability to the children and in recognition of the parents’ wishes. The society did not provide notes from this meeting to the applicants or the Board.

14The applicant grandmother testified that she was told by the supervisor that the reasons for the decision were her history and conflict in the family. The worker's testimony and case note indicate that there was some detail provided. According to her testimony and her case note, the supervisor told the applicant grandmother that the decision had been made to terminate access because the only reason they had had access was for respite for the paternal grandparents and the children were no longer with them. Further, she told her that there is conflict within the family and that the children’s parents do not want the applicants to have access and the society wants to limit the conflict the children may be exposed to. She also told the applicant grandmother that the plan for the children was adoption and that access would cease then. The applicant grandmother was upset and told the worker that she didn’t cause conflict and that she doesn’t say things about the parents to the children. The supervisor, according to her notes, explained that the society was trying to prevent conflict altogether and not assign blame. She also advised the applicant grandmother that she wanted the children to have “normal” childhoods doing activities and not going on multiple access visits. When the applicant grandmother asked why the paternal grandparents still got to see the children, the supervisor replied that the children had lived with the paternal grandparents, that they were an approved home and that the applicant was not and could not be because of her history and the fact that the parents would not agree.

15The supervisor offered to meet with the applicants but the applicant grandmother, who was speaking for both applicants, declined, saying there was “no point”.

16A meeting at this time could have led to further explanations and it was the applicant who shut down that option. Had matters ended there, the society would have met its obligation because it was willing to open the dialogue to provide further information and the applicant was not open to further discussion.

17The applicants filed their application with the Board three days later.

18The parties re-opened communication on October 15, 2014, when the applicant grandmother spoke to the assistant director. The assistant director responded to the applicants’ request for continued access. They spoke on the phone. They had a discussion about conflict, without any specific examples. The assistant director told the applicant grandmother that the children did not have an emotional response to not seeing the applicants and they discussed the paternal grandparents.

19On October 20, 2014, the society’s assistant director wrote to the applicant grandmother in an effort to explain the decision. The letter referenced the strained relationship with the children’s parents and that the applicants saw the children only sporadically while with the parents. The letter referenced how the society had made the decision to permit access once they discovered that the paternal grandparents had wanted that access as respite and that this was done “despite” the applicant grandmother’s “child welfare history”. The letter also referred to the children experiencing intense conflict among adult caregivers in their family and the desire to protect them from the impact of conflict. The letter stated “given the parents’ wishes, the fact you were denied party status by the court, and that your contact does have the potential to expose the children to further conflict, the Society made the decision to discontinue your access”. It also discussed the children being in foster care and the society not wanting to “overcommit the children to attend various access visits as they were already having weekly access with their parents and monthly overnight access with their paternal grandparents”. The letter offered a meeting. The applicant grandmother responded to the letter with several points and questions by letter dated October 27, 2014.

20The applicants met with the assistant director on November 7, 2014 about the applicants’ request for access to the children and the reasons the society was not allowing access. According to the assistant director and her notes, the society advised that it wants to focus on the children’s treatment needs and that the children are in recreational programs and treatment. She informed them that the paternal grandparents had not had access for six weeks. When the applicant grandmother said she couldn’t understand why the applicants had no access, the assistant director responded that the reason was to reduce exposure to tension arising from conflict between family members.

21In terms of the children’s feelings, the assistant director told the applicants that the children only expressed fear at not seeing their paternal grandparents. The applicant grandfather testified that the applicants asked questions about how the society assessed the children’s views and wishes and whether they had a lawyer. They requested that someone independent interview the children and got no response. The assistant director does not recall this discussion; however, similar questions were asked in the October 27, 2014 letter, without answer. After the applicant grandmother talked about the children enjoying their visits, the assistant director told the applicants that access must be meaningful and beneficial and that the society did not see access to them as “beneficial”. They discussed the long term plan for the children and she explained that the society is obliged to look at a permanent plan and that the applicant grandmother had not been approved. The applicant grandmother responded that there was no reason not to approve her, that she had seen the society records and there was nothing to prevent her from having access. According to the applicant grandfather, he asked for specifics: to see written material or to be told the specifics of what the society relied on and he got the “same”, non-responsive look, references to “the past” and no specifics. The assistant director does not recall going into detail about the child welfare history. She had not seen the child welfare history and did not go over it before the meeting.

22The assistant director stepped in to deal with the applicants’ concerns after the decision was made. She was not part of the decision. She had limited information. She had not read the applicant grandmother’s child welfare file and thus was not familiar with which aspects the society relied on in its decision. Further she did not bring anyone who was more familiar with the file to the meeting. The applicant grandfather testified that her responses often involved repeating the society’s position. The assistant director did not dispute this. It appears from the case notes and the testimony of all witnesses that there was no real detail provided by the assistant director about conflict or the child welfare history.

23Further, according to the supervisor at no time did she spell out the details of the child welfare history that the society relied on in making its decision. She had spoken to the applicant grandmother in 2013 in the context of the refusal of the kin assessment but not regarding access. She told the Board that what she relied on was that the mother had experienced abuse as a child and there was conflict between the parents that involved the applicant grandmother. However, she did not go into any detail with the applicant grandmother about which aspects of the child welfare history she was concerned about. She conceded that because there was no detail, there was no opportunity for the applicant grandmother to explain or rebut the child welfare history in question. Without details, the applicants did not have the opportunity to challenge the society's view of the file. The applicants’ perspective was that since the mother's father had been charged and convicted, the child welfare history related to him and not the applicant grandmother. The society case notes indicate that the applicants told the society they had seen the child welfare history file. The Board cannot infer from this that the applicants should therefore know what parts of that file informed the decision. This was never explained to them.

24Further, with respect to family conflict, the evidence was that the society mentioned the word “conflict” several times but without further explanation. The assistant director also discussed with the applicants the need for the children to participate in treatment relating to conflict. There had been no incidences of the children being at risk from the applicants and no evidence of them observing conflict over the course of the access. Thus, it was not clear from these reasons how the treatment aspect related to the decision to stop access. The society did not provide specifics about which aspects of family conflict informed the decision, particularly with reference to how the children’s access had gone over the past year with the applicants.

25After the meeting and letter, the applicants were still left with several unanswered questions that represent the gaps in the explanations provided.

26It is not the Board's role to question the merits of the society's decision. However, for a decision to be meaningful, it must be responsive to the circumstances and to questions raised. Without more details, it was difficult to understand the decision in light of the society's acquiescence to access for over a year. While the applicants knew the overall context, they cannot be expected to read the thoughts of the decision makers and to link the dots for the decision-makers. The gaps in the information, with reference to some of the questions posed by the applicants to the society at various times are:

• What parts of the child welfare file as it relates to the applicant grandmother is the society relying on and how does this relate to access to the grandchildren?
• What family conflict did the society rely on, with examples as to how this impacted on the question of access to the applicants?
• How does the children’s need for therapy relating to conflict relate to whether they have access to the applicants?
• How much weight was given to the fact that no issues directly involving the grandparents and their access to the grandchildren arose related to family conflict or otherwise, as compared to other factors?
• The society’s evidence was that it was basing its decision on the children’s mother’s perspective about access. The applicants asked why this perspective was being given weight now when the mother always had this perspective and the applicants had had access and the children were wards of the society who is the decision-maker.
• What information and process did the society rely on to assess the children’s views and wishes about seeing the applicants and what are the children’s views and wishes? The applicants had asked the society if they would be willing to have an independent person assess the children’s views and wishes about access to them. They did not receive a response to this question.
• What explanation was given to the children about why the applicants were not seeing them? The applicants’ evidence was that they had been told that the children thought it was because the applicants didn’t know where the children lived.

27The society never provided reasons for the initial decision to reduce access. It clearly did not meet its obligation in that regard. However, that decision was eclipsed by the decision to terminate all access. The society made bona fide efforts to meet its obligations. Some of those efforts occurred after the application to the Board. While they provided reasons for the decision on the day of the decision and offered a meeting that was refused, the parties had ongoing contact in which more questions were raised. Opportunities to provide detail existed but were not taken advantage of. This may have been in part due to the unfamiliarity of the person answering the questions, with the file. There were gaps in the explanations that need to be filled in, in order for the explanation to be meaningful for the applicants. Consistent with the purpose behind s. 68.1 (4) 5, the more fulsome explanation will give the applicants an understanding of the reasoning behind the decision so that they can either accept the decision or respond to it in a constructive way.

28The Society did not meet its obligation to provide reasons to the applicants under s. 68.1 (4) 5.

ORDER

29One of the remedies available to the Board under s. 68.1 (7) is to order the society to provide written reasons for decisions affecting the applicants’ interests. Based on the gaps in information referenced above and the Board’s requirement that reasons be meaningful, the Board makes the following order. The Board finds that it is helpful to all parties to pose specific questions where as in this case, there are identifiable gaps in the information provided.

30The Board orders the society to provide a detailed written explanation to the applicants in which it shall provide answers to the following questions:

• What parts of the child welfare file as it relates to the applicant grandmother is the society relying on and how does this relate to access to the grandchildren?
• What family conflict did the society rely on, with examples as to how this impacted on the question of access to the applicants?
• How does the children’s need for therapy relating to conflict relate to whether they have access to the applicants?
• How much weight was given to the fact that no issues directly involving the grandparents and their access to the grandchildren arose related to family conflict or otherwise, as compared to other factors?
• Why was the mother’s perspective about access given so much weight at this point in the process as compared to earlier when the applicants had access, with reference to the children’s status as wards of the society as decision maker?
• What information and process did the society rely on to assess the children’s views and wishes about seeing the applicants and what are the children’s views and wishes? As per the applicants’ request, would the society be willing to have an independent person assess the children’s views and wishes about access to them and if not, why not?
• What explanation was given to the children about why the applicants were not seeing them in light of the applicants being told that the children thought it was because they didn’t know where the children lived?

31The explanations shall contain sufficient information regarding the factors that were taken into account in making the decision to allow the Applicants to understand why and how the decision was made.

32The society shall have 15 days from the date of this order to comply.

CONFIDENTIALITY ORDER

33Pursuant 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

_____________________

Sheena Scott

Vice-Chair