Children’s Aid Society of Algoma v. V.C., 2011 ONCJ 83

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. Sault Ste. Marie Registry No. 274/2009 DATE: 2011·II·18 CITATION: Children’s Aid Society of Algoma v. V.C. , 2011 ONCJ 83 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF ALGOMA, Applicant, — AND — VICTORIA C., BRENT R. and PIC RIVER FIRST NATION, Respondents, — AND — RAE-ANN PATRICIA P.,

Moving Party. Before Justice John Kukurin Heard on 14 February 2011 Reasons for Judgment released on 18 February 2011 STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subsection 37(1),

section 39, subsection 39(1),

section 57, paragraph57(1)¶1, subsection 57(4) and

section 57.1. Family Law Rules, O. Reg. 114/99 [as amended], subrule 7(4), paragraph 7(4)¶2 and subrule 7(5). CASES CITED 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.). Children’s Aid Society of London and Middlesex v. P.(J.), , 95 A.C.W.S. (3d) 316, [2000] O.J. No. 745, [2000]O.T.C. 139, 2000 Cars​well​Ont 718 (Ont. Fam. Ct.).

Jack Squire .................................................................................... counsel for the applicant society Kenneth R. Davies ............................................ counsel for the respondent mother, Victoria Childs Kristi M. Whitfield ............................................ counsel for the respondent father, Brent Robinson Moving party and maternal grandmother, Rae-Ann Patricia Perrault ................... on her own behalf No appearance by or on behalf of the Pic River First Nation, even though served with notice [1] JUSTICE J.

KUKURIN:— This is a decision on a motion (at tab 5, volume 2) brought by the maternal grandmother ofthe child Kira (age two and one-half) to be added as a party. [2] Kira was apprehended from the actual care of this grandmother in November 2009. At that time, the mother and fatherof the child were separated. The mother was actually in Alberta on the day of apprehension. She had left Kira in the grandmother’s carewhile she went away for a few weeks. The society started a child protection application naming the child’s mother, father and thechild’s band representative as respondents.

That proceeding resulted in an order for six-month society wardship. The present case is astatus review in which the society seeks an order for Crown wardship with no access so that Kira may be adopted. Kira has now been incare of the society continuously for over 14 months. [3] The maternal grandmother is not named as a party respondent in the present status review case. She wishes to be addedas a party respondent so that she may contest the society’s claim for Crown wardship without access. She wishes to make a claim forcare and custody of Kira herself.

Her intention, if she is successful in this claim, is to raise Kira to adulthood. [4] The society opposes the addition of the grandmother as a party respondent. The father does as well. [5] The mother neither consents nor opposes party status for the grandmother but makes it clear through her counsel thatshe adopts this neutral position mainly to preserve the relationship that presently exists between mother and grandmother.

She points outthat she too has a claim in this case for care and custody of Kira, and would strongly oppose any claim for this same relief that thematernal grandmother would make if she were granted party status. [6] The Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (“the Act”), is like many other statutes in that itcontains a procedural code with respect to child protection proceedings.[1] Within that code is

section 39, which deals with parties inproceedings under

Part III. Subsection 39(1)[2] sets out who are statutory “parties” in such proceedings. The grandmother is clearly nota society, nor a band representative, nor the child’s mother. The only other way that she could possibly qualify as a statutory party is byvirtue of being a “parent” of Kira. [7] The word “parent” when used in

Part III of the Act is not restricted to biological parents of the child. There is anexpanded definition of “parent” in subsection 37(1)[3] of the Act that could include any of a number of persons who are not biologicalparents, depending on the evidence in the case. [8] Although grandparents could conceivably qualify as “parents” in some cases, and thereby be entitled to statutory partystatus, the maternal grandmother in this case does not seem to be such a grandparent. She does not argue that she is. Nor does theevidence filed on this motion, and in this status review case, support such a judicial inference.

[ 9 ] The only other way for her to obtain party status is pursuant to the Family Law Rules , O. Reg. 114/99, as amended (“the rules”). [4] More specifically, subrule 7(5) [5] gives to this court a discretion to add as a party any person “who should be a party”. [ 10 ] There is no particular guidance in the rules to assist the court in deciding who should be a party. There is, however, a body of case law that has evolved, likely because of this minimal guidance in the rules.

The case law that is most relevant is that which deals with adding parties in the context of a child protection case. [ 11 ] The decision most often cited for judicially established criteria for adding parties under subrule 7(5) in child protection proceedings is the case of Children’s Aid Society of London and Middlesex v. S.H., S.W. and D.R. , which dates back to 2002. [6] The four questions to be posed in making such decision are whether the addition as a party: (

a) serves the best interest of the child; (

b) will unduly delay or prolong the proceeding; (

c) is necessary to determine the issues; (

d) is of a person who is able to advance a plan that is in the child’s best interests. [ 12 ] There is a fifth question that has emerged from the jurisprudence, [7] namely: (

e) whether the person sought to be added has a legal interest in the proceeding in the sense that an order can be made in favour of or against such person. [ 13 ] I cannot infer that the addition of the maternal grandmother as a party respondent will unduly delay the case. However, it will clearly prolong the case, not just because of the involvement of another person and her counsel, but more because the grandmother’s party involvement will inevitably raise contested issues that are not currently so.

Principle among these is the correctness of the kin assessment of the grandmother, the validity of its conclusions, and the judicial inferences that should be drawn from all of the evidence about the grandmother. The involvement of the grandmother as a party will also add several additional battlefields to the case. Currently, the battle lines are between: • society and mother; • society and father; • mother and father; The grandmother’s involvement adds: • grandmother and society; • grandmother and mother; • grandmother and father.

From a delay point of view, the addition of the grandmother is not a particularly welcome prospect unless there are significant other reasons why she should be in the case as a party. [ 14 ] Does a proper determination of the issues require the addition of the grandmother as a party? The answer to this question is both yes and no. This is a status review case. The main issue is: What disposition under

section 57 (or

section 57.1) should be made with respect to Kira? The temporal limitations built into the Act permit only two alternatives. One is Crown wardship. The other is placement of Kira in someone’s care and custody with or without a supervision order. The only candidates for care and custody appear to be the mother and the father at the present time. The grandmother is not needed as a party in this case for the court to decide the claims between the mother, father and society.

On the other hand, because Crown wardship is an option that the court is obligated to consider, it is also statutorily required by subsection 57(4) [8] of the Act to consider whether it is possible to place the child with an extended family member. The grandmother falls in this category. [ 15 ] The consideration of whether it is possible to place the child with the grandmother is not simply an unquestioned judicial acceptance of a kin assessment of the grandmother prepared by the society.

Particularly where the kin assessment is challenged, the court has to be more cautious in rejecting such kin as a potential placement option. The problem is in how to deal with the issue of a contested kin assessment when the assessor has party rights and the kin does not. There is no easy answer to this. Fairness favours the addition of the kin candidate as a party. But doing so could open up a proverbial can of worms. In this case, for example, the kin assessment recounts events as far back as 1976 when the grandmother was herself placed in the society’s care as an infant.

One can only imagine the geometric explosion in a child protection case if there were two, or perhaps three alternative kin placement candidates all seeking to be added as parties. [ 16 ] In this case, the society has argued that the kin assessment paints so pejorative a picture of the grandmother as a kin placement that there is no justification for allowing her consideration as a potential caregiver by extending party status to her. To some extent, this argument makes some sense. The grandmother does not challenge most of the historical information presented by the society in this motion.

The few factual allegations that she claims are not correct would not attenuate the overall unfavourable nature of the society’s assessment and the society’s evidence on this motion. [ 17 ] Whether adding the grandmother as a party in this status review case would be in Kira’s best interests is a question that can be approached in almost as many ways as it can be answered. One of the principle pressures in this case is from the fact that Kira’s time in care is already well beyond what the Act contemplates. The Act gives primary participatory consideration to those persons to whom it accords party status.

In this case, the parents are fighting the society. What is the fairness to them to add the grandmother so that they also have to fight her? Does this advance the best interests of Kira? I do not believe so. Children require some certainty and permanency. They should not linger in foster care. The child’s biological parents have the primary rights and responsibilities with respect to Kira. In a contest with the state, some deference should be accorded to these parents, even on the issue of whether other persons should be permitted to participate as parties in their litigation with the society.

[ 18 ] It is clear that the grandmother has a legal interest in this case in the sense that an order under paragraph 57(1)¶1 [9] could be made in her favour. So also could an order for custody under

section 57.1 of the Act . This is not a situation where the grandmother wants in only to clear her name, or to set the record straight about her past. I infer that this grandmother has a bona fide interest that is primarily directed to obtaining care and custody of, and raising her granddaughter. [ 19 ] The case of Children’s Aid Society of London and Middlesex v. S.H., S.W. and D.R. , supra, does not, in my view, stand for the proposition that all four of the “criteria” mentioned in that case must favour the motion applicant before the court can add that person as a party under subrule 7(5).

This subrule uses the words “may order”, which denotes a permissiveness that should be exercised judicially. In other words, judicial discretion. [ 20 ] In the present case, I decline to add the maternal grandmother under subrule 7(5) as a party respondent in this case. Adding her complicates and prolongs the case. None of the statutory parties want her in as a party. Her attack on the kin assessment report is tepid, at best. She would have to overcome the effect of this report to have even a middling chance of success of her proposed claim. She has no evidence of how she plans to do this.

The case calls for an early final resolution. She has not satisfied me under subrule 7(5) that she should be a party. [ 21 ] I would, however, make one further judicial observation. This grandmother is seeking to be added as a party in a status review case. She did not do so in the child protection case that resulted in the order that is subject to the present status review. She was not named as a party in that earlier child protection case. [ 22 ] Why did she not ask for party status in that earlier case?

With the benefit of hindsight and the evidence presently available, it is apparent that she did not feel that she was in circumstances then to advance a claim for the return of Kira to her care. [ 23 ] For it was from the grandmother’s care that Kira was apprehended in fact, even though the society maintains that it was from the mother, as the custodial caregiver, from whom the child was apprehended. [ 24 ] The facts, even as recounted in the kin assessment filed by the society, indicate that the grandmother “had been caring for the child since early October [2009] when the mother left town”.

The child Kira was apprehended from the care of maternal grandmother on 10 November 2009. This is at least one month of sole continuous care by the maternal grandmother with the child’s mother out of town. The evidence shows that the father had no contact in that time. It is not a difficult inference that the grandmother had “care and control” of the child — regardless of what argument may be made about who may have had “custody” during that time. [ 25 ] In practical terms, it is the society that starts the child protection application.

It places the names of individuals as parties in the applications that it files with the court. In doing so, it should follow the procedural requirements of the statute as well as of the rules. [ 26 ] Subrule 7(4) [10] is a subrule that deals with parties in cases involving children.

Paragraph 7(4)¶2 makes this subrule applicable to child protection cases. [11] It seems clear that if some person other than a parent had “care and control” of the child involved in the case, that other person “shall be named as a party unless the court orders otherwise”. [ 27 ] This procedural requirement is no less obligatory simply because it is found in a rule rather than in the statute. A society, which should certainly be aware of who has care and custody of children it apprehends in most cases, should comply with this rule.

If it does not want such person to continue as a party, it can seek, by motion, an order otherwise. It is not appropriate to simply ignore this rule. [ 28 ] It seems to me that, if this grandmother had been named a party in the prior child protection case, her motion at tab 5, volume 2 might have been unnecessary. She might have been a party by rule rather than by statute and would not need to be added as a party under the rules by court order. 39. Parties. —

(1) The following are parties to a proceeding under this Part: 1. The applicant. 2. The society having jurisdiction in the matter. 3. The child’s parent. 4. Where the child is an Indian or a native person, a representative chosen by the child’s band or native community. 37.

Definitions.—

(1) In this Part, . . . “parent”, when used in reference to a child, means each of, (

a) the child’s mother, (

b) an individual described in one of paragraphs 1 to 6 of subsection 8(1) of the Children’s Law Reform Act , unless it is proved on a balance of probabilities that he is not the child’s natural father, (

c) the individual having lawful custody of the child, (

d) an individual who, during the twelve months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of his or her family, or has acknowledged parentage of the child and provided for the child’s support, (

e) an individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child, and

(

f) an individual who has acknowledged parentage of the child in writing under

section 12 of the Children’s Law Reform Act , but does not include a foster parent; . . .

(5) Party added by court order. — The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.

(4) Community placement to be considered.— Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. 1.

Supervision order — That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

(4) Parties in cases involving children. — In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child and Family Services Act , shall be named as a party, unless the court orders otherwise: 1. A case about custody of or access to a child. 2. A child protection case. 3. A secure treatment case (Part VI of the Child and Family Services Act ).