Children’s Aid Society of Algoma v. T.M., 2021 ONCJ 640

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

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re 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) Prohibition re identifying person charged .— 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. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(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. CITATION: Children’s Aid Society of Algoma v. T.M. , 2021 ONCJ 640 DATE: October 18, 2021 ONTARIO COURT OF JUSTICE 15 Hudson Avenue, Blind River, ON P0R 1B0 CASE NAME: CAS of Algoma v T.M. and R.C. Date Oct 18, 2021 BY ZOOM Present Kukurin J. A. Marrato for the applicant society G.

Fournier for the respondent mother, T.M. G. Fournier for the Respondent father, R.C. M.M., maternal grandmother (non party) Absent T.M. R.C.

[1] Mr. Fournier has a motion to be removed as counsel for the mother and for the father. They have both been duly served. Neitheris present to oppose this motion. No other party opposes this motion.

On reading the affidavit of Mary Ellen Parks, I am satisfied thatsuch order should be made. [2] The society has brought a motion seeking an order that adds M.M. (MGM) as a party respondent in this proceeding ostensibly sothat she can file an Answer and include in it a claim for a deemed custody order of her grandchild A., age 1. [2] On reading the evidence filed, it appears that the MGM has had an order granting her temporary care and custody of the childsince May 12, 2020 and continuously to date. This is a period of 17 months. [3] The CYFSA has an expansive definition of who is a parent.

Under s.74(1) clause 5, a parent is a person who has lawful custodyof a child. Under s.74(1) clause 7, a person who under a court order has lawful custody of a child is a parent. While these are

definitionsfor

Part V (Child Protection) purposes only, they do not, in my opinion, provide otherwise than does the definition of parent in s.2(2)(a)which applies throughout the CYFSA statute, as a person who has lawful custody of a child. [4] My conclusion is that the MGM is a party because the CYFSA accords party status to a “parent” and she is clearly a parent byvirtue of the above. I was prepared, using Rule 7(5), to add her as a party respondent as being a person who should be added as aparty. [5] The society argued that while it sought to have her added as a party, it did not want the court to do so on the basis that she was a‘statutory’ parent under the expansive

definitions of ‘parent’ in the Act. It argued that the time for a person to qualify as a parent waswhen the proceeding was commenced, and in this case, the MGM was clearly not a parent. [6] I disagree. The time for a person to be added as a party is the time at which the determination must be made if he or she is aparent. In this case, it was at the time of the hearing of the society’s motion. [7] The CYFSA casts a wide net to encompass all of the persons whom it regards as “parents” for purposes of child protection.

Forexample, an individual who has a court order for access is a “parent” even though he or she may have never exercised such access. Aperson who is not a child’s parent can become one simply by certifying the child’s birth as a parent under the Vital Statistics Act(Ontario). The legal spouse of a bioparent of a child can be a ‘parent’ under the CYFSA even though that spouse and her husband (thebioparent) have been separated for years and she lives across the world from the child.

The grandmother, in this case, has a relationshipwith the child that is not a tenuous one but one that is “hands on” parental in nature. True, she is the child’s grandmother but her role ismuch more than a grandmotherly role. [8] In my view, because the MGM meets the definition of “parent” at this time, means that she is a statutory party at this time. Shedoes not have to meet the criteria set out in the jurisprudence, most notably Children's Aid Society of London and Middlesex v. S.H.[2002] O.J. No. 4491, [2002] O.T.C. 916, , 2002 CarswellOnt 4048 and cases that followed or modified thatdecision.

Her ‘parental’ status trumps such criteria as pre-requisites for adding her as a party. Order to Go: 1. That Mr. G. Fournier is removed as counsel for the respondent mother, T.M. and the respondent father, R.C. in this proceeding. 2. That the maternal grandmother, M.M. is found to be a “parent” under s.74(1) clauses 5 and 7, and under s.2(2)(

a) of the CYFSA,and is thus a statutory party who is hereby granted status as a party respondent in this proceeding. 3. That the applicant society shall serve M.M. with a copy of all documents in the continuing record and she will have 30 days fromdate of such service to file an Answer.

4 . That the application is adjourned to Nov 29,2021 at 1:00 pm to set a date for the next step. 5 . That the court clerk will determine if this proceeding is an Elliot Lake matter or a Blind River matter and endorse this on the cover of the endorsement record. Justice John Kukurin per: ………………………………. Court Clerk