Halton Children’s Aid Society v. T.A.K.G., 2011 ONCJ 385

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 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 . . . the 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) (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. Milton registry No. C441/09 DATE: 2011·VII·14 CITATION: Halton Children’s Aid Society v. T.A.K.G. , 2011 ONCJ 673 ONTARIO COURT OF JUSTICE BETWEEN: HALTON CHILDREN’S AID SOCIETY, Applicant, — AND — T.A.K.G., A.D. and J.P.P., Respondents. Before Justice Roselyn Zisman Heard on 30 June 2011 Reasons for Judgment released on 14 July 2011

STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subclause 37(2)(a)(i), clause 37(2)(

f) and subsection 57(4). Family Law Rules, O. Reg. 114/99 [as amended], subclause 7(3)(b)(ii) and subrule 7(5). CASES CITED Catholic Children’s Aid Society of Toronto v. H. (Dana) and B. (Permjit), 2009 ONCJ 2, [2009] W.D.F.L. 2702, [2009] O.J. No. 125,2009 Cars​well​Ont 126 (Ont. C.J.). Children’s Aid Society of Dufferin County v. L. (Alexandra) and P. (Christopher), , 39 R.F.L. (5th) 68, [2003] O.J.No. 1237, 2003 Cars​well​Ont 1269 (Ont. C.J.) Re Children’s Aid Society of Kingston and Frontenac County and K. (Holly Florence) (an infant), , 100 A.C.W.S.(3d) 425, [2000] O.J.

No. 3854, 2000 Cars​well​Ont 3711 (Ont. Fam. Ct.). Children’s Aid Society of London and Middlesex v. H.(S.), W.(S.) and R. (D.), , 118 A.C.W.S. (3d) 672, 16 O.F.L.R.126, [2002] O.J. No. 4491, [2002] O.T.C. 916, 2002 Cars​well​Ont 4048 (Ont. Fam. Ct.). Diane B. Skrow ..................................................................................... counsel for the applicant(

s) Peter Tensuda ............................................................. counsel for the respondent mother T.A.K.G. Respondent father of M., A.D. .............................................................................. on his own behalf Jeffrey S. Hart .......................................................... counsel for the respondent father of F., J.P.P. Raymond D. Sowley......................................................... counsel for the proposed added party, D.K. JUSTICE R. ZISMAN:— 1: ISSUES [1] This is a motion by the maternal grandmother, Ms.

D.K., to be added as a party, pursuant to subrule 7(5) of the FamilyLaw Rules, O. Reg. 114/99, as amended, to this status review application, as she wishes to present a plan to seek custody of hergrandchild F., or in the alternative, unsupervised access to her. 2: BACKGROUND [2] F. and her stepbrother, M., were apprehended from the care of the mother and Mr. A.D. on 19 September 2009 whenneighbours called the police. When the police attended at the residence, they observed numerous injuries to F. that were inconsistentwith the explanations provided by Ms. T.A.K.G. and Mr. A.D..

Both children were apprehended. [3] Both the mother and Mr. A.D. were charged with criminal offences as a result of the injuries to F.. The charges againstMr. A.D. were subsequently withdrawn and the mother has been found guilty of assault causing bodily harm and is awaiting sentencing. [4] On 28 October 2010, there was a finding that F. was in need of protection pursuant to subclause 37(2)(a)(

i) and clause37(2)(

f) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (“the Act”), and that M. was in need of protectionpursuant to clause 37(2)(

f) of the Act. Both children were placed in the care and custody of the society. Pending the return of a statusreview application, the society was to conduct a kinship in care assessment of the paternal great aunt and uncle of M. and an assessmentof Mr. J.P.P., the biological father of F.. [5] M. was subsequently placed in the care of his paternal great aunt and uncle. [6] F. was placed in the care of her father following a contested motion, heard on 5 May 2011, as the placement wasopposed by the mother and Mr. A.D.. [7] On 5 May 2011, prior to the motion regarding F.’s placement with her father being heard, Mr.

Sowley, counsel for Ms.D.K., attended and sought an adjournment of the motion to permit Ms. D.K. to bring a motion to be added as a party. At that time, I ruledthat I was not prepared to delay any further the motion that had already been adjourned previously at the request of the mother and Mr.A.D.. I also noted that Ms. D.K. had been present at the prior court attendance, was aware of the timetable set for the filing of materialsand that she had ample opportunity to bring a motion to be added as a party prior to the motion. I advised counsel that my ruling did notpreclude Ms.

D.K. from bringing a motion, on proper notice to all parties to be added as a party. [8] It was subsequently agreed that Ms. D.K.’s motion be heard on 30 June 30, 2011, prior to the settlement conference thatwas scheduled for the same day.

3: POSTIONS OF THE PARTIES [9] The mother and Mr. A.D. take no position regarding the motion. Although on the previous attendance, both supportedthe request for an adjournment by Ms. D.K., and for her to be added as a party and for F. to be placed in her care. [10] The society opposes Ms. D.K.’s being added as a party on the basis that it would delay the proceeding, that adding her asa party would not be in F.’s best interests and that she is not capable of putting forward a plan for custody that is in F.’s best interests. [11] Mr.

J.P.P. supports the society’s position. 4: ANALYSIS [12] Subrule 7(5) of the Family Law Rules provides that the court may order that any person who should be a party shall beadded as a party. Subclause 7(3)(b)(ii) includes as those who should be added as parties “every other person who should be a party toenable the court to decide all the issues in the case.” [13] The starting point in any analysis of who should be a party in a proceeding, is the case of Children’s Aid Society ofLondon and Middlesex v. S.H., S.W. and D.R., , 118 A.C.W.S. (3d) 672, 16 O.F.L.R. 126, [2002] O.J.

No. 4491,[2002] O.T.C. 916, 2002 Cars​well​Ont 4048 (Ont. Fam. Ct.). In that decision, Justice Grant A. Campbell reviewed the pre-existing caselaw and distilled the following principles that a court should consider in deciding whether a person should be added as a party to a childprotection proceeding under subrule 7(5) of the Family Law Rules: (

i) Did this person’s addition as a party serve the child’s best interests?(ii) Would this person’s addition as a party delay or prolong proceedings unduly?(iii) Was this person’s addition as a party necessary to determine the issues?(iv) Was this person capable of putting forward a plan that was in the child’s best interests?(

v) Did this person have a legal interest in the case? [14] Most of the cases in this area involve grandparents being added as parties because they are presenting a plan to care forthe child that is not supported by the society, which is seeking a Crown warship order.[1] In those cases where grandparents have beenadded as a party, that courts have relied on subsection 57(4) of the Act, which imposes upon the society a duty to consider the possibilitythat placement with a relative or extended family member could be the least restrictive alternative available. [15] In the cases where grandparents have not been added as parties, the court has found there is little merit to their plans.[2] [16] In the majority of cases, delay was not cited as a pivotal concern as the case would proceed to a Crown wardship trial inany event. [17] Applying subrule 7(5) and the principles set out in the case law, it would appear that anyone whose presence is necessaryfor the efficient and just disposition of a proceeding can be added as a party to a proceeding. [18] I find that it is not necessary to add the maternal grandmother as a party to this status review proceeding to determine anyissue in this case.

There can be no dispute that F. remains in need of protection based on the assessment of the Child Advocacy andAssessment Program at the McMaster Children’s Hospital (“CAAP”). F. has been assessed as suffering from post-traumatic stresssyndrome associated with her exposure to physical, sexual and emotional abuse experienced in her mother and stepfather’s care and F.’searly exposure of violence in her mother’s and father’s care. She requires ongoing counselling. [19] With respect to the issue of disposition, it is also not necessary to add the maternal grandmother as a party.

Subsection57(4) of the Act does not have the same impact in this case as in the other cases where a grandparent has been added as a party, as thesociety is not pursing a Crown wardship placement but is supporting a placement with the biological father. In other words, this is not asituation where F. will be placed with strangers rather than a blood relative. The placement of F. with her father has been thoroughlyassessed by Dr. Seim.

Since F.’s temporary placement with her father, the evidence presented to the court is that she is doing well in hiscare and the care of his partner. [20] Counsel for the maternal grandmother agreed that the father would have priority in planning for F. but he submits that,although the maternal grandmother may not be successful, she should be given the opportunity to have the court assess her plan. Theconcern raised by the maternal grandmother to F.’s being placed with her father is based on his history of domestic violence with themother.

The father has acknowledged his history of domestic violence with the mother. The father was subject to a parent capacityassessment by Dr. Seim who thoroughly canvassed this issue. Dr. Seim concluded that the father had matured considerably since hisrelationship with the mother, that he was in a stable relationship with his current partner and there was no evidence of any domesticviolence in that relationship. The maternal grandmother was interviewed in that assessment and advised Dr. Seim that, if she could nothave F. placed with her, she wished F. placed in the joint custody of herself and the father.

The maternal grandmother’s primary concernwas that she continues to have access to F.. Both the society and the father have agreed to maintain her contact with F.. [21] In considering whether adding the maternal grandmother as a party would be in the best interests of F., the court cannotpredict with certainty whether the current placement with her father will continue to meet her needs, but there is every indication that itwill. Dr. Seim assessed that F. was developing a strong and positive attachment to her father and his partner. In contrast, Dr.

Seimassessed that the maternal grandmother’s attachment to F. was “dysfunctional”, based more on the material and affectional rewards giventhan upon any perception of the grandmother’s providing a safe haven for F.. F. did not perceive the maternal grandmother in a parentalrole but rather as a fun playmate who provides her with gifts and food treats.

[ 22 ] The primary concern in adding the maternal grandmother as a party at this stage of the proceeding is that, in this case, it would delay the permanency planning for F.. F. is aware that her current placement with her father and his partner is only temporary. Both the CAAP assessment and Dr. Seim’s assessment have identified her as a fragile child who has an urgent need for stability and permanency. If the maternal grandmother is not added as a party, there may not even be a need for a contested trial. F. is clear that she does not wish any contact with either her mother or stepfather. Dr.

Seim assessed that she has no attachment with her mother or stepfather and that she revealed significant physical, emotional, and possibly sexual abuse while in their care. F. was adamant that she wished to be protected from their involvement in her life. Her mother and stepfather elicit strong negative emotions and fear response from F.. Further, the mother has been found guilty of assaulting F. and is awaiting sentencing. Although the charges have been withdrawn against the stepfather, there is credible evidence that, in the past, he abused F. and did not protect her from abuse by the mother.

In the maternal grandmother’s affidavit, she deposes that both the mother and stepfather physically abused F. from September 2006 to September 2009 and, then when their child M. was born, they not only continued to abuse her physically but they also neglected her. In light of this evidence, it is difficult to imagine that their position that F. be returned to their care would prevail. In all likelihood, the society would be in a position to proceed with a

summary judgement motion. [ 23 ] I also find that the maternal grandmother is not capable of putting forward a plan that would be in F.’s best interests. It is not disputed that the maternal grandmother has throughout F.’s life been involved in her care. On many occasions, she cared or assisted the mother in caring for F.. There is no allegation she ever physically abused F.. But despite her knowledge that F. was being abused and neglected, she was unable to protect her. In her affidavit, she states that not only was the mother abusive to F. but also would be physically abusive to her.

But throughout this time, she continued to return F. to the care of the mother and stepfather. There is no indication that she ever called the children’s aid society to report her concerns about F.’s remaining in the care of the mother and stepfather. [ 24 ] Adding the maternal grandmother as a party would be in her best interests as it would give her an opportunity to seek a placement of F. with her. But it is equally clear that giving her such an opportunity would not be in F.’s best interests.

This case is somewhat unusual as there is considerable evidence already before the court regarding the maternal grandmother. She participated in the CAAP assessment of F. and in Dr. Seim’s assessment of the father. Although she was not the focal point of either of those assessments, there is, on the basis of the interviews with her and the observations of her with F., ample evidence that she is not capable of providing a permanent viable plan to care for F.. The maternal grandmother also reported to Dr. Seim that she had serious health problems, but she does not address this issue in her affidavit.

In the submissions on behalf of Ms. D.K., counsel did not provide any evidence of how he intended to overcome the negative assessments of his client. Adding Ms. D.K. as a party at this stage of the litigation will only prolong and complicate the proceedings. [ 25 ] The maternal grandmother has a legal interest in the proceeding, in that a custody order could be made in her favour if she were added as a party. On the basis of the evidence already before the court, it is unlikely that her position would prevail.

Further, it is clearly against F.’s interests to further delay or complicate this proceeding. [ 26 ] I do not wish this ruling to be seen as diminishing the positive role that the maternal grandmother can and should have in F.’s life. But, in my opinion, it is not necessary to add the maternal grandmother as a party to order to preserve her access to F.. 5: ORDER [ 27 ] The motion of the maternal grandmother, Ms. D.K., to be added as a party is dismissed.