Children’s Aid Society of Peel Region v. S.M.P., 2011 ONCJ 694

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Brampton Registry No. 20083/11 DATE: 2010·VIII·31 CITATION: Children’s Aid Society of Peel Region v. S.M.P. , 2011 ONCJ 694 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF THE REGION OF PEEL, Applicant, — AND — S.M.P., B.H., and P.H. Respondents. Before Justice P.W.

Dunn Heard on 24 August 2011 Ruling on Motion released on 31 August 2011 Ms. Robin McDonald ................................................................................... for the applicant society Ms. Deborah L. Stewart .............................................................. for the respondent mother, S.M.P. Matthew Price, Esq. ........................................................................ for the respondent father, B. H.

David Ian Kilgour, Esq. …………………………………for the respondent paternal grandmother, P.H. P.W. DUNN, J.: [ 1 ] Before the court is a request regarding paragraph (

d) in the motion dated 2 August 2011 by S.P. The responding parties are the Children’s Aid Society of the Region of Peel (“the society”), B.H., and P.H. [ 2 ] The child in question in these proceedings is A.H., born […] October 2010. The girl’s mother is S.P. (born […] May 1996), as the moving party. The father is B.H. (born […] February 1993), and P.H. is the child’s paternal grandmother. The society brought a protection application dated 18 July 2011 involving the child A.. [ 3 ] Paragraph (

d) in the motion requested that P.H. be removed as a party in the society’s proceeding. [ 4 ] Ms. Stewart argued the motion on behalf of S.P. Ms. M., representing the society, Mr. Kilgour for P.H., and Mr. Price for B.H., all opposed the motion, and maintained that P.H. should be a party. [ 5 ] The affidavit of Jessica Soto, sworn 15 July 2011 referenced the history of the society’s involvement. Ms. Soto is a social worker, who had carriage of this case; she was employed by the society. [ 6 ] From before A.’s birth on […] October 2010, S.P. lived with P.H. and B.H.

This arrangement continued until July 2011, when S.P. left with A. to live with M.G., the child’s maternal grandmother. Shortly after the baby’s birth, P.H. involved the society over her worry about S.P.’s lack of parenting skills because of her young age.

There were other areas of concern to the society at the time, such as B.H.’s youth and his mental health, and the conflict in the home between the child’s parents with each other and with P.H. [ 7 ] The society saw some strengths in the family constellation, so a voluntary service agreement dated 9 November 2010 was negotiated among the parties, without any apprehension. Of particular importance in the agreement were the following statements ( inter alia ): (

A) All three parties (S.P., B.H., P.H.) identified P.H. as the primary caregiver of A.. The parents agreed to live with A. at P.H.’s residence. (

B) P.H. was to assist in providing A.’s financial needs. (

C) P.H. was to be aware of A.’s presence at all times. (

D) P.H. was to ensure that the child’s night feedings took place regularly. The agreement also required the father and mother to meet their child’s needs, but it was clear that the primary responsibility for A.’s welfare lay with P.H. [ 8 ] The affidavit of S.P., sworn 2 August 2011, in support of her motion, made clear that she was concerned about the ability of P.H. to care for A.. She disputed that the paternal grandmother played any significant role in her child’s welfare. [ 9 ] Ms. Stewart made the following points in furtherance of her client’s motion: 1. The voluntary service agreement of 9 November 2010 was not a valid agreement because: (

i) S.P. was only fourteen years old when the agreement was signed, and she should have had the assistance of her maternal grandmother and a lawyer before entering the agreement. (ii) the agreement had no expiry date. If the agreement is invalid, then P.H. should not be a party.

2. In the alternative, if the court found the agreement to be valid, Ms. Stewart proposed that the voluntary care agreement did not state that custody was being given to P.H., only that she was a primary caregiver. Counsel argued that clauses 37(1)(

c) to (

e) inclusive in the Child and Family Services Act (the C.F.S.A. ) did not qualify P.H. as a “parent”, because P.H. (

i) did not have lawful custody of A.; (ii) did not show a settled intention to treat A. as a child of her family; (iii) was not required in a written agreement to provide for A., have custody of or have a right of access to A.. [ 10 ] I disagree with Ms. Stewart’s postulations and I support the arguments of Mr. Kilgour, Mr. Price and Ms. McDonald. [ 11 ] Regarding whether in this case the voluntary service agreement was valid, children’s aid societies enter agreements regularly with underage parties and without specific time limits to terms.

These agreements are informal; the involvement of legal counsel and unnecessary specificity would derogate from the agreement’s prime function, which is to have the parties focus on what is needed by the parents and caregivers to ensure a child’s safety. These agreements are not intended to be binding legal contracts of the type to be considered when commercial business interests are determined, for example. These agreements need to be practical and in terms readily understood by parties who may not be gifted in insight.

There is often no need for a term limit because they are usually superseded by subsequent events requiring a whole new protection strategy. Such happened in this case, when S.P. took A. to her maternal grandmother’s to live which precipitated new investigations by the society. I find that the agreement did what is was intended to do; to place A. in P.H.’s residence with the mother and father present, but with P.H. to be the primary caregiver. It was not a contract because it lacked some essential terms of a contract. [ 12 ] With respect to Ms.

Stewart’s arguments whether P.H. was a parent within the meaning of clauses 37(1)(

a) to (

e) inclusive of the C.F.S.A. , it is clear that P.H. would qualify as a “parent” because ‘she’, • demonstrated a settled intention to treat A. as a child of her family for at least eight months; • provided financially for A. and had regular care and access to the child; • was solicitous about the child’s welfare; • has taken

part in these proceedings. [ 13 ] Finally, reference should be made to Rule 7(4) of the Family Law Rules which states: In any of the following cases, …every…person who has care and control of the child involved …shall be named as a party unless the court orders otherwise;

(2) A child protection case. [ 14 ] Clearly under subsection 22 of the C.F.S.A. and Rule 7(4), P.H. qualifies as a parent. Hence, the motion dated 2 August 2011 by S.P. is dismissed. [ 15 ] I thank all counsel for their careful arguments. Released: August 31, 2011 ____________________________ Justice P.W. Dunn