CHILD AND FAMILY SERVICES REVIEW BOARD
E.K.
v.
Children’s Aid Society of Ottawa
REASONS FOR DECISION
Indexed as: E.K. v. Children’s Aid Society of Ottawa
(CFSA s.68)
INTRODUCTION
1The Applicant filed an application with the Child and Family Services Review Board (the “Board”) on October 3, 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 Ottawa (the “Society”).
2The Applicant alleges that the Society has not listened to her service concerns or heard her when decisions were made regarding her daughter and has not provided her with reasons for decisions that affected her interests.
3The Applicant’s specific complaints were clarified during a pre-hearing teleconference on January 14, 2016, as follows:
(a) She had significant concerns regarding her Society worker and that worker’s involvement with both herself and her daughter, which were not listened to and acted upon by the Society; and
(b) She had significant concerns regarding the nature of her access visits including, but not limited to, the final visit with her daughter following the Court decision that made her daughter a Crown ward for the purposes of adoption and denied her ongoing access.
4The Society, in its written response, stated that it had given the Applicant every opportunity to be heard and that it had fulfilled all the legislated requirements of section 68 of the Act in its communication and interaction with the Applicant.
5An oral hearing in this matter was held on April 29, 2016 in Ottawa. For the reasons which follow, the Application is allowed in part.
BACKGROUND INFORMATION
6The Applicant is the birth mother of the child, [ ], who was born in 2012.
7The Society became involved in this case at the time of the child’s birth and [the Child] was placed in the care of her maternal grandmother. The Applicant’s contact with [the Child] was initially supervised by the father and later by the Society.
8Following certain allegations of non-compliance against the maternal grandmother, [the Child] was apprehended and placed in a short term foster home.
9In January 2013, [the Child] was placed in the care of her paternal grandmother. Following a court order in March 2013, which stated that [the Child] was in need of protection due to her mother’s mental health issues and drug use, the paternal aunt was assessed and approved for the purposes of adoption.
10Since that time, [the Child] has lived in the care of the paternal aunt with the support of the paternal grandmother and had supervised access visits with the Applicant at the Society’s facilities.
11The Society made an application to the Ontario Superior Court of Justice in July 2013, seeking to terminate the supervision order to the paternal grandmother and seeking an order for Crown Wardship for the purposes of adoption without access. The Applicant sought a lesser protection order and requested that [the Child] be placed in her care, subject to the Society’s supervision. Alternatively, she asked for liberal access if the Crown Wardship was approved or even a joint parenting order between herself and the paternal aunt.
12On August 18, 2015, the Court issued its decision, making [the Child] a Crown Ward for the purposes of adoption with a denial of the Applicant’s request for ongoing access.
THE EVIDENCE
The Applicant’s evidence
13The Applicant, who represented herself, reiterated the above background information from her own perspective, focusing on her very negative relationship with[the Child]’s father, his family, i.e., the paternal grandmother and aunt, the workers at the Society and many of the professionals that she came into contact with relating to her ongoing mental health issues and previous drug use.
14A key component of the Applicant’s evidence focused on her relationship with two of the Society’s child protection workers, both of whom, she claimed, treated her unfairly and who were responsible to quite an extent for the situation which led to her daughter’s current status as a Crown Ward.
15She claimed that the Society had promised that her primary worker, [ ], would be replaced and that she would never have to see her again, except in Court. In spite of this, in addition to attending the Court trial that led to [the Child] being declared a Crown Ward, [primary worker] was also involved in responding to staff concerns about the Applicant’s visit with her daughter in July 2015. She stressed that clearly the Society reneged on its promise.
16Although in her oral submission she also referred to her negative relationship with another child protection worker, [ ], she gave no specific examples of this.
17The Applicant stressed that, more than anything, she wants to have access to her child and blamed the Society for denying her this. She claimed that (a) her treatment amounted to torture and entrapment;
(b) that the drug testing using hair follicle samples, on the basis of which the Society claimed that she continued to use illegal drugs, was inaccurate, perhaps even deliberately misrepresented or misinterpreted by the Society and should not have been relied upon; and
(c) that the staff acted like “the devil incarnate”, when dealing with her.
18She wants the Board to punish the Society for treating her so badly and to compensate her for all that she had gone through. She said that she did not want others to face the treatment that she had to endure, namely, being blamed for everything in order to ensure that she would not have access to her child.
The Society’s evidence
19The Society’s evidence consisted of the testimony of the Child Protection Supervisor and the Service Director. In addition, the Society submitted the full court decision making [the Child] a Crown Ward, the affidavits of the two staff members present and a series of emails, which were included in the sworn affidavits.
20The Child Protection Supervisor reviewed the matter of the worker whom the Applicant wished to have removed from her case and why it was not possible, in the Society’s opinion, to comply fully with the Applicant’s request. She denied that they had ever promised to the Applicant that “she would never have to see [primary worker] again except in court”.
21She described that because of the length of the trial and the Society’s standards of practice for office visits, there were two visits with the Applicant and her child which were supervised by [primary worker] After that, in May 2015, it was decided “that there was no clinical purpose in having meetings and the standards were aborted”.
22The Supervisor described that the next time that [primary worker] had a direct involvement with the Applicant was at a July 2015 family visitation, where the Family Visitation Worker asked for help with responding to the negative events of the visit. It was [primary worker] who attended the visitation area to address the issues that the worker was concerned about.
23The Supervisor described at length some of the concerns that staff had with the Applicant when she attended their facility to visit with her daughter. She acknowledged that the circumstances relating to the access visits during the summer of 2015 resulted in some changes made by the Society, which the Applicant “could have seen” as a loss of privilege. These included such things as asking the Applicant to have security check her bags and/or purse before going into the access area to ensure that she did not bring in anything that could prove to be dangerous to her daughter or the staff. There were numerous references to the “knife incident”, although the knife in question was used to cut an ice cream bar into quarters and was not used apparently to threaten anybody.
24The Supervisor confirmed that the staff expressed concerns that the Applicant acted in a “paranoid and delusional” manner during some of the visits. This focused, in particular, on the August 20, 2015 visit, when the Applicant arrived at a non-scheduled time and had with her some building materials and renovation equipment including a sledge hammer. She apparently claimed that she was returning these to a store after the visit that she had hoped to have with [primary worker] and that is why she had these things with her. She did not see [primary worker] at this time.
25The staff claimed that they felt so threatened by her at this time that they decided that there would be no final visit. Following a safety planning meeting on September 9, 2015, the file was officially closed. Instead, staff suggested that a life book be prepared containing some mementoes of [the Child] to be given to her mother. The Supervisor stressed that there was concern about both the child’s safety and in particular staff safety, if they were to go ahead with the planned final visit.
26The Service Director first became aware of this case after the August 20, 2015, incident with the building materials. She stated that she had chaired the September 9th safety planning meeting, where the decision was made to cancel the final visit.
27She described how, following the Applicant’s request for reconsideration, she arranged a final visit for January 7, 2016, at an alternative location, with herself bringing [the Child], instead of the other regular workers. The Applicant attended with her mother.
28The Service Director described that the final visit, after a positive start, did not finish well and the Applicant ended up very upset. She was shouting and using profane language. Her mother walked out, stating that she could not deal with this. Eventually, the police were called and the child had to be removed by her.
29The Service Director called the Applicant and her mother after the meeting. This call did not go well and both the Applicant and her mother were angry with her about the outcome. She confirmed that her primary concern was the safety and best interests of the child.
ANALYSIS
30The Board has authority to determine if the Applicant was heard when she raised service concerns with the Society, and when decisions were made that affected her interests. The Board also has the authority to determine if the Applicant received reasons for decisions made that affect her interests.
31The Board’s authority and the Society’s obligations are found in the following sections of the Act:
- (1) The paramount purpose of this Act is to promote the best interests, protection and wellbeing of children.
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and wellbeing of children, are:
- 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.
32In 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.
33The “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.
34The remedies sought by the Applicant, namely the reestablishment of access to her daughter and “punishing” the Society for the way that she was treated are outside the mandate of the Board.
35Based on the oral evidence of the Applicant and the written affidavits and oral evidence of the Society’s Child Protection Supervisor and Service Director, the Applicant’s allegations regarding:
(a) the “torture” and “entrapment” that she claimed to have endured at the hands of the Society’s workers who were involved with her and her daughter;
(b) her claim that the Society falsified some of the drug tests on the basis of which they made decisions about her interactions with her daughter; as well as
(c) her claim that she did not have a final visit with her daughter to say goodbye have not been proven and are therefore dismissed.
36The Society’s explanation of how it dealt with the Applicant’s request for a new worker and her concerns about her interaction with some of the staff and how that impacted her access visits with her daughter during the period before and immediately following the Court trial related to this matter did not, in my opinion, adequately reflect that the Society fully considered the Applicant’s requests and interests.
37I cannot accurately determine whether the Society had made any actual promises to the Applicant regarding her worker, [ ]. However, the Society was aware of the request and following the trial could and should have made arrangements that the Applicant had no further direct interaction with [primar worker]. This did not happen.
38Further, the reported comments of some of the workers involved with the Applicant and her child, who, according to the Society’s own witnesses, described the Applicant as “delusional and paranoid” and claimed to be afraid of the Applicant, which resulted in them denying the Applicant the planned final visit and closing her file in September 2015, in my opinion, confirm some of the Applicant’s allegations of inappropriate treatment.
39A final visit was, in fact, organized by the Service Director who reopened the file as a “non-protection case” and arranged the visit off-site at a neutral location. This step, following the Applicant’s complaint to the Board, somewhat ameliorated the situation for the Applicant.
CONCLUSION
40The Board has no power to change the Court’s decision and to re-establish the Applicant’s access to her daughter. Further, the purpose of s.68 is not to “punish” the Society but to protect and promote meaningful participatory rights for parents and caregivers in their relationship with a society.
41The Applicant’s allegations regarding torture by the Society’s workers and denial of a final visit are dismissed.
42The Applicant’s allegations that the Society did not appropriately and fully act upon her request to change her worker and did not appropriately and adequately respond to her concerns about her interaction with the staff and the impact of this on her access visits, including a final visit, with [primary worker] are upheld.
43The Board accepts that the Society found the Applicant a difficult client, who had proven mental health needs. However, this does not make the description of the Applicant by non-mental health qualified staff as “paranoid and delusional” appropriate. Further, given the Society’s evidence about the importance of a final visit under such circumstances, i.e., when a child has been made a Crown Ward for adoption purposes with no access, the decision made to cancel the planned final visit and closure of the file support the Applicant’s allegations about her treatment. The Board accepts that the Society failed to provide the Applicant with the requisite full opportunity to be heard and to be informed of the reasons for the decisions made.
44The Board recognizes that the Society’s primary mandate is the protection of the children in its care. In addition, it is legally obligated to provide a safe working environment for its staff. While staff clearly had significant concerns about the Applicant’s behaviour, I heard no evidence that the Applicant was physically aggressive towards any of the staff, although by her own admission, she was verbally abusive.
45Since [primary worker] is now a Crown Ward for the purposes of adoption with no maternal access, the Applicant no longer has a file with the Society and does not have a worker assigned to her. In effect, her relationship with the Society has been terminated.
46Nevertheless, accordingly, the Board orders within 20 days of this Decision:
the Society will provide the Applicant with a written explanation for its decision not to change the worker assigned to the Applicant following her request; and
the Society will provide the Applicant with a written explanation for its decision to change her access visit arrangements and to cancel her final visit with [the Child].
CONFIDENTIALITY ORDER
47Pursuant 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.
EVA NICHOLS
______________________
Eva Nichols
Board Member
Dated in Toronto, Ontario on this 13th day of May, 2016.