Ombudsman's Presentation

Under Our Watch
Submissions of the OMBUDSMAN of ONTARIO to the Standing Committee on Social Policy, respecting Bill 210, the Child and Family Services Statute Law Amendment Act

Introduction
I thank the Committee for making some room for me to present on Bill 210. I understand that I have 30 minutes this evening. I intend to make a short presentation then answer your questions.
As this committee knows full well, Bill 210 is not without its fair share of controversy. However, the objection that I bring for your consideration is one that has not been heard publicly and one which I believe I am duty bound to raise. In a nutshell, whereas other provinces have seen fit to provide independent oversight over their respective child protection agencies, the Ombudsman’s office has, in Ontario, an extremely narrow opening to investigate complaints about the services sought or received by the Children’s Aid Societies. That small window will close once this bill passes unless this committee makes its voice heard. If that small window closes, Ontario will have the dubious distinction of having solidified its position as being at the back of the oversight pack in Canada in ensuring that the most vulnerable of our children have an independent avenue of redress.

The Stakes

We all know who our most vulnerable citizens are – children at risk – children whose parents are unable or unwilling to care for them. The importance of ensuring that we succeed in rescuing and protecting these children and in helping their families cannot be overestimated. After all, our children are our future. Today’s children are tomorrow’s citizens – tomorrow’s parents, tomorrow’s workers, tomorrow’s governors. When today’s children are protected and given a sense of self-worth, they can take care of tomorrow. But when things go wrong, today’s children can become tomorrow’s burden. Worse, when things go wrong, today’s children can be today’s tragedies. When they are not given the effective support and protection that is their simple birthright as human beings, they are neglected, even abused. They are left unfed or unsupervised. At times they are beaten or sexually violated, or as in the horrifying case of Jeffrey Baldwin and his young sister, they can be denied their humanity entirely. And as that case also shows, these tragedies can happen under our watch.

The Reality

Fortunately Ontario is blessed with good citizens who are prepared to make the protection of children their life’s calling. There are 53 independent non-profit organizations in this Province, Children’s Aid Societies, staffed by dedicated people who try to pick up the pieces when our children are being failed. Their work could not be more important. The effectiveness of what they do could not be more urgent. But as is true of all humans, these societies sometimes fail, and the systems we have put in place to help them sometimes fail. When this happens families can be broken apart needlessly, or children can be deprived of stable foster-care, or adoptions can fail, or at times, children can suffer continued abuse, or even die as Jeffrey Baldwin did.

Jeffrey slowly starved to death in 2002 at almost 6 years old. He was only 21 pounds and stood only at 37 inches. Evidence now being called at the trial of his grandparents charged with 1st degree murder is that he was living in his own feces in his bedroom while his lungs were filled with pneumonia. He was “treated like a dog” and forced to eat in a corner and urinate and defecate on the floor. Sadly, according to media reports, the Catholic Children’s Aid Society of Toronto not only did not prevent this horrifying situation from happening, but facilitated it. This CAS gave custody of Jeffrey and three of his siblings to these two accused-murderers. One of the co-accused had been convicted years before with assault causing bodily harm in the death of her baby who suffered broken bones.

If honourable members wonder how in God’s name the CAS, our child protection agency in Ontario, could ever facilitate providing custody to someone in these circumstances, you are not alone. We received a complaint in the last month about this case and asked to investigate. We had to turn it down. We have no jurisdiction over the CAS. If Jeffrey had had the good fortune of being born in any other province in Canada, lingering questions about the role or complicity of the CAS in the death of Jeffrey could be probed. Alas, in Ontario, we are forced to simply turn a blind eye and move on.

Jeffrey’s case may be an extreme case but it is not a unique one. Children can die as 25-day-old baby Jordan did in 2001, when he starved to death while his 19-year-old mother was supposedly being supervised, because CAS workers assumed staff at a Community woman’s shelter would take care of things.

It is never time to stop trying to improve things. It is never time to stop making the system and the people who administer it as good as they can be.

The Goal

Like any thinking citizen of this Province, I am therefore pleased to see many of the improvements to our child care practices being taken in the Child and Family Services Statute Law Amendment Act, things like increasing the flexibility of dispositions to meet the needs of each child, making the system friendlier for adopting parents, and the attempts to reduce the expense and acrimony of litigation by encouraging mediation. But I did not come here simply to applaud the Act. I am here because the legislation will fail in reaching another of its underlying objectives – namely, strengthening the complaint procedure to provide higher standards of accountability for Children’s Aid Societies. Not only will Bill 210 fail to achieve this, it will make it worse.

The Problem

Currently, my office cannot accept complaints directly about Children’s Aid Societies, even though we receive hundreds of complaints annually. Last year we received 305. In the first six months of this fiscal year we received 94. Because of limits on our mandate we cannot address them. We have to tell affected individuals caught up in what are likely to be the most important events in their lives – struggles relating to the welfare of children – that we cannot help.

Other provincial Ombudsmen are not so limited. In 1991-92 in her Annual Report my predecessor lamented that “All provincial Ombudsman except for Ontario and Quebec have jurisdiction over Children’s Aid Societies or their equivalent.” Meanwhile, last year Nova Scotia passed amendments to increase the relevant jurisdiction of its Ombudsman.

Quite evidently, there is no policy reason why my Office should not be dealing with CAS complaints. Other provincial Ombudsmen do. Indeed, as long ago as 1986 a Canadian Ombudsman’s conference in Ottawa passed a resolution to give priority to the investigation of complaints made by or involving children.

Our inability to consider CAS complaints is not because of any concrete policy choice, or because of concern that it would be unsuitable to have an Ombudsman help achieve inexpensive and expeditious solutions to the litany of problems that arise. Our inability is an accident of history. It is because Ontario is the only province in Canada where Children’s Aid Societies, although publicly funded and provincially monitored, developed as private institutions, and, like other provincial Ombudsman my Office generally oversees only government agents. At present this gives me only a sliver of responsibility to oversee what I will call “Directors’ reviews” that are undertaken under s.68(3) of the Child and Family Services Act. Directors’ reviews occur rarely, where the Ministry chooses to exercise its discretion to assign a Director to review a CAS decision. Since the Director is appointed by government I can examine the way he conducts the review, but not the underlying issue.

The Failure of Bill 210

So what does Bill 210 do in an attempt to improve the handling of complaints? Not only is the Office of the Ombudsman of Ontario not taken advantage of, Bill 210 removes the jurisdiction of the Ombudsman of Ontario over Directors’ decisions by abolishing Directors’ reviews under s.68(3). While other provinces are moving forward in lock step to give their citizens the benefits of an expeditious, inexpensive, informal complaints procedure relating to some of the most important matters those citizens will face, we in Ontario are moving backwards.

How then, can the Government present Bill 210 as legislation that will increase CAS accountability by improving the complaint procedures? We do not yet know the details because they will be housed in regulations. What we do know is that the Ombudsman of Ontario’s Office, provides the ingredients necessary for effective oversight, “expedition and informality” and “effectiveness.”

Expedition and informality

As Bill 210 recognizes with its call for increased mediation, not every problem requires formal adjudication. Most of the complaints we receive can be solved quickly and inexpensively through timely intercession. Sometimes it happens because our impartiality enables us to see obvious solutions that the parties are too invested to see. At other times we serve as honest brokers.

Effectiveness

For deeper and more intransigent problems, particularly when those problems are systemic, there must be investigation, and there must be credibility in reporting. The Ombudsman Act provides our Office with the tools needed to find the facts, including the statutory power to demand production and if necessary, compel testimony and conduct hearings, and we have the track record to employ reason and exercise moral suasion to secure results.

The Solution

An elaborate statute has been crafted to make this Office effective at external oversight. That statute is called the Ombudsman Act. This Office, which administers that statute, is not only in place, it is well-established. Giving the Ombudsman of Ontario jurisdiction to oversee the work of Children’s Aid Societies will provide the most expert, expeditious, informal and effective form of oversight possible. This is why my predecessors have been calling for this power for more than twenty years. This can be achieved easily, without having to amend the Ombudsman Act and without setting any precedent as I already have some authority relating to private contractors operating under the Ministry of Correctional Services Act. The solution can be achieved by adding a single provision to the Child and Family Services Statute Law Amendment Act to give the Ontario Ombudsman authority over Children’s Aid Societies. I would propose that Bill 210 be amended by adding the following provision:

Approved agencies designated as children’s aid societies under s.15(2) shall be deemed to be governmental organizations for the purposes of the Ombudsman Act.

In the end, this should be done for the most compelling of reasons – for the children and their families. If this power had been given when my predecessors called for it in an effort to correct a technical accident of history, much of the grief experienced by the parents of disabled children told about in my Report, Between a Rock and a Hard Place may have been avoided. Those parents were forced to give their children up to Children’s Aid Societies in order to secure residential care they could not afford, and while the Societies were supportive in most cases, some of the bureaucrats they dealt with were insensitive to the realities of the situation, and subjected these families to humiliation and degradation, without apparent appreciation that they were dealing with loving, capable parents. And I wonder what kind of contribution we can make to improving the protection for the Jeffrey Baldwins and Baby Jordans of the world.

The Province of Ontario provides over 1 billion dollars to fund child protection services through 53 independent Children’s Aid Societies yet fails to provide the checks and balances that would ensure that administrative decisions taken by these Societies, which have life and death impact on children in need, be exposed to independent investigation.

If we as a Province want to discharge our deep moral and legal responsibility by using private Children’s Aid Agencies to perform one of the most important functions of government, that is fine – for the most part those societies have acquitted themselves well and we are in their debt. We must, however, do what we can to make sure that they operate as effectively and as fairly as possible. They do the ground work, but in the end, the children of this province are our responsibility. Their wellbeing is under our watch. Tragically at times, we know that their very lives can be lost under our watch. We can never let that happen because we have not been watching effectively, nor can we permit families and adopting parents to suffer needlessly because we have developed an incomplete or ineffective oversight system. This Office was devised to improve the quality of decisions affecting the lives of Ontario’s citizens. This is my plea to make use of it where it is most required.