Children’s Aid Society of the District of Nipissing and Parry Sound v. M.P., 2023 ONCJ 389

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. ONTARIO COURT OF JUSTICE CITATION: Children’s Aid Society of the District of Nipissing and Parry Sound v. M.P., 2023 ONCJ 389 DATE: 2023 09 13 COURT FILE No.: Parry Sound FO-19-95-02 BETWEEN: The Children’s Aid Society of the District of Nipissing and Parry Sound Applicant, — AND — M.P., B.D., L.P. Respondent(

s) Before Justice B.C. Oldham Heard on August 23, 2023

Reasons for Judgment released on September 13, 2023 Erica Marcassa.................................................................... counsel for moving party, A.D. Kelly Docherty................................................................. counsel for the applicant society Cassandra Baars............................................................. counsel for the respondent, L.P.

M.P. ................................................................................................................ on her own behalf B.D. ............................................................................ noted in default as of March 29, 2023 OLDHAM J.: [ 1 ] The Court heard a motion by A.D., paternal great grandmother to the child, S.D. born on […], 2019. The biological parents of S.D. are M.P. and B.D. [ 2 ] A.D. seeks to be added as a party to the proceedings. L.P., the maternal grandmother of S.D., was added as a statutory party on April 19, 2023.

History of Proceedings [ 3 ] The Children’s Aid Society of Nipissing and Parry Sound (the “Society”) has been involved with this family since S.D.’s birth. The initial protection application was commenced on December 24, 2019. Pursuant to the Temporary, without prejudice Order of Justice Lambert dated December 27, 2019, S.D. was placed with his maternal aunt and uncle S.P. and B.S. [ 4 ] The Society and Respondent parents signed a Statement of Agreed Facts (“SAF”) on January 28, 2020.

The SAF acknowledges reported concerns by health care workers and police about substance and alcohol use (and abuse) during pregnancy, transiency, unsafe living conditions, poor judgment in making decisions that impact their child and police involvement. [ 5 ] By Final Order of this Court on January 28, 2020, S.D. was placed in the care of his mother and father, subject to terms of supervision for a period of six months (the “Initial Final Order”). A finding in need of protection was made pursuant to subsection 74(2) (b)(

i) of the Child, Youth and Family Services Act (“ CYFSA ”) on the same date. [ 6 ] The first Status Review Application was commenced on June 18, 2020. On October 28, 2020, by Temporary Order of this Court, S.D. was moved from the joint care of his parents, to the sole care of his mother, subject to terms and conditions of supervision by the Society. [ 7 ] On March 30, 2021, this Court made a further Temporary Order moving S.D. from the care of his mother into the care of L.P., his maternal grandmother. [ 8 ] In the year that followed, S.D.’s father, B.D. relocated to Alberta for employment.

He stopped engaging in the proceedings and was noted in default on June 22, 2021. M.P. incurred criminal charges. She lived in the Brockville area following her release from custody and then moved to Petawawa for a period of time.

As of March 2022, M.P. had returned to Parry Sound. [ 9 ] On March 1, 2022, the March 30, 2021 Temporary Order became a Final Order with the following additional term and condition applicable to L.P.: “L.P. will continue to make reasonable access arrangements with the paternal great grandmother, A.D.”. [ 10 ] The second and current Status Review Application was commenced on July 18, 2022 (the “Current Status Review”).

On August 17, 2022 a Temporary Order was made with S.D. continuing in the care of L.P. on the same terms as in the March 1, 2022 Final Order (which included the term that L.P. make reasonable access arrangements with A.D.). [ 11 ] On January 12, 2023, the Society amended the Current Status Review from a further six month supervision order, to request an order under

section 102 of the CYFSA , placing S.D. “in the joint care and custody of his maternal grandparents, L.P. and P.P. and his paternal great grandparents, A.D. and J.D.”. [ 12 ] Following the release of the Court of Appeal’s decision in Children’s Aid Society of London and Middlesex v. T.E. 2023 ONCA 149 (“ T.E. ”), the Society brought a motion seeking to add L.P. as a statutory party. This Order was made on consent on April 19, 2023. [ 13 ] B.D. has not re-engaged in the proceedings and was noted in default on March 29, 2023 following a Subservice Order made on February 14, 2023.

Position of the Parties with Respect to the Motion to Add A.D. as a Party to the Proceedings 1. Position of A.D. [ 14 ] Counsel for A.D. submits that A.D. should be added as a statutory party under subrule 7(3) of the Family Law Rules (“ FLR ”),

subrule 7(4) of the FLR, or as a parent under

section 74 of the CYFSA. [15] Given that A.D. is not a party to the proceedings she, nor her Counsel, have access to the pleadings or orders made to date. Counsel understood that A.D. had some access rights but was unaware of the specific order or condition. She submits that given thelanguage in the Final Order of March 1, 2022 and the condition that L.P. make reasonable access arrangements with the paternal greatgrandmother, that A.D. is a parent under the CYFSA.

A “parent” under s. 74(1) of the CYFSA includes an individual who, “under awritten 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”. [16] If A.D. is not a statutory party, Counsel submits that the Court should exercise its discretion under subrule 7(5) of the FLR andadd A.D. as a party. [17] Counsel submits it is in S.D.’s best interest that A.D. be added as a party given her involvement in S.D.’s care.

With reference todeciding whether to add a party under subrule 7(5) of the FLR in a child protection proceeding, Counsel referred to the followingprinciples to be considered as set out in Children’s Aid Society of London and Middlesex v. S.H., S.W. and D.R. (ONSC) (“London Middlesex”). a.

Is the addition of the party in the child’s best interests? [18] A.D.’s affidavit indicates that she has been caring and supporting S.D. even before he was born by providing housing, food andresources to M.P. and B.D. while M.P. was pregnant. [19] As of March 2021, when S.D. was removed from M.P.’s care, A.D. claims she took on a regular and consistent role by providingcare weekly from Tuesday to Friday.

Counsel submits that this translates to approximately 19 of 31 days per month or 61% of the time.While S.D. spends weekends with his maternal grandmother, he is cared for primarily by A.D. during the week. [20] In addition, when L.P. was unable to care for S.D. (for example when she broke her ribs and could not lift him), A.D. stepped inand provided consistent care throughout the week. S.D. only returned to L.P.’s home on the weekends when her husband was home toassist. [21] S.D. is almost four years of age and over the past three years he has developed a close bond with A.D.

Counsel submits that he iscomfortable in her care and there have been no concerns about her ability to provide for him. Counsel further submits that A.D. supportsboth the maternal and paternal side of the family. She is uniquely situated to provide S.D. with an understanding of and a relationship tohis paternal side of the family and provides an important voice and an important support in terms of his caregiving. [22] Counsel submits that any change to this routine and care would be disruptive and would not be in S.D.’s best interest. b.

Will the addition of A.D. as a party delay the proceedings? [23] A.D. has retained counsel and Counsel on behalf of A.D. confirms that there will be no delay. A.D. is prepared to engage inmediation and will follow any timelines established by the Court for filing materials. c. Will A.D.’s participation assist the Court [24] Counsel expresses concerns about whether the Court will have full and complete information about S.D.’s needs andrelationships if A.D. is not a party.

She points to the tone of M.P.’s affidavit and the disparity between the information included in L.P.’saffidavit versus A.D.’s affidavit with respect to A.D.’s contributions and role as a caregiver. While the affidavit of the Child ProtectionWorker (“CPW”), Bonnie Bailey supports the evidence in terms of A.D.’s role as a caregiver, some arrangements were made betweenthe grandparents directly. A.D., Counsel submits, provides an important voice for S.D. [25] Since at least March 2021, A.D. has provided significant care to S.D.

It is Counsel’s position that it is important for the Court tohave an accurate account of his relationship, the time spent with and the care provided by A.D. in order to properly assess his bestinterests. d. Is A.D. capable of putting forward a plan [26] Counsel submits that A.D. knows how to care for S.D. and has knowledge of the needs of a child S.D.’s age. She is prepared toput forward a plan that maintains his routine and supports the stable relationships he has developed. e.

Does A.D. have a legal interest in these proceedings [27] Counsel submits that if A.D. does not have the ability to provide input in this case, her legal interest may be impacted. Her legalinterests in the proceedings is her ability to care, provide for and have access to S.D. 2. The Society’s Position [28] The CAS does not oppose A.D.’s motion to be added as a party. [29] The affidavit sworn by Bonnie Bailey on July 17, 2022 advises that she received carriage of this file on February 1, 2020 and thatshe has continued as the CPW.

In her role as the CPW she confirms that A.D. has provided significant care to S.D. over the years. Atparagraph 12, Ms Bailey confirms the following access: a. In March 2021, S.D. was at A.D.’s on the weekends.

b. Beginning November 2021 A.D. continued to care for S.D. at least 3 days a week, often more. c. In early January 2022 A.D. was caring for S.D. for longer stretches, typically Monday until Friday to accommodate the maternal grandmother needing to rest and not being able to lift S.D. due to broken ribs. The maternal grandfather was home from work on weekends, therefore S.D. returned on weekends. d. By January 13, 2022 L.P. and A.D. returned to the child care

schedule with S.D. staying with A.D. Tuesday to Friday. e. On June 27, 2022 A.D. advised that S.D. was with her as L.P. was not feeling well and stayed in Ottawa. A.D. advised that she would work things out with L.P. for visits with S.D. f. On November 8, 2022 A.D. advised that when L.P. was away for work S.D. was with her from Sunday until Friday and on the weeks when L.P. was home he was with her from Tuesday until Friday. A.D. advised that S.D. was with her almost full time the previous month as L.P. was gone for three weeks due to medical appointments and work. g. Between the spring of 2022 and the fall of 2022, the

schedule with A.D. fluctuated due to L.P. working in Ottawa and also attending medical appointments in Ottawa. A.D. adjusted her scheduled to care for S.D. when she was away. [ 30 ] The Society submits that there will be no delay in the proceedings if A.D. is added as a party and that her voice will assist in determining the issues. The Society notes that the grandparents worked well together until recently and submits that it appears that the interests have diverged because S.D. is now school aged. 3.

L.P.’s Position [ 31 ] Counsel for the maternal grandmother submits that there is no evidence of conflict between the grandparents. She submits that adding A.D. as a party is contrary to S.D.’s best interests, based on the factors set out in subsection 74(3)(

c) of the CYFSA . [ 32 ] Counsel notes the importance of supporting the primary purpose of the CYFSA , which is to support the autonomy of the family unit. Rules 1 and 3 of the FLR require that matters be dealt with fairly. This obliges the court to ensure that the timelines set out in FLR are respected.

To add a party at the status review stage of a child protection proceeding, Counsel submits is not a good use of the court’s time or resources. [ 33 ] Counsel reviews the support provided to S.D. by the maternal grandmother, including attending for medical and speech therapy appointments, providing a secure place within the family, ensuring the continuity of care. [ 34 ] Counsel further submits that A.D. has not provided evidence to prove that she has met the criteria set out in subrule 7(5) of the FLR and 79(3) of the CYFSA .

The primary focus being on the fact that the addition of a party this late in the proceedings is inappropriate. In acknowledging that L.P. was just added as a party on April 19, 2023, Counsel notes that she is a statutory party and the order made on that date simply corrects an oversight. [ 35 ] With respect to A.D.’s party status, Counsel for the maternal grandmother submits that A.D. does not have any court ordered access and that she only cares for S.D. from Tuesday afternoon until Friday afternoon. 4.

M.P.’s Position [ 36 ] M.P. filed a brief affidavit which was not properly served on the parties, but was accepted and read into the record. She acknowledges that she has not had time to obtain stable independent housing and is unable to put forward a plan at this point. She notes that she has been unable to find a lawyer to assist her and simply wishes to support her mother’s plan at this stage. [ 37 ] It is noteworthy that conditions were added to the terms and conditions of the Final Order on March 1, 2022 restricting M.P.’s ability to exercise access to S.D. without Society approval.

Specifically, as of March 1, 2022 and continuing in the current Temporary Order of August 17, 2022, “L.P. will not allow M.P. or B.D. to attend to her home when S.D. is present unless approval is given by the Society”. Two additional terms were added for M.P. preventing her from residing in her mother’s home unless approved by the Society and preventing her from attending at her mother’s home, or A.D.’s home when S.D. is present, unless approval is provided by the Society.

M.P. has been working with the Society since her return to Parry Sound, but these conditions were added to address a concern and remain in the order. Analysis [ 38 ] It is clear from the affidavits of the CPW and A.D. that S.D. has spent a considerable amount of time in A.D.’s care over the past couple of years. Even L.P. acknowledges that S.D. spends every week from Tuesday to Friday at A.D.’s home.

She denies, however, that A.D. is a caregiver for S.D. and maintains that she is the primary caregiver. [ 39 ] The fact is that both grandparents have been actively engaged in caring for S.D. since at least March 2021 when S.D. was removed from his mother’s care. He was only 15 months old at this time. While S.D. was initially placed with L.P. as the caregiver, A.D. has taken on an increasing role in providing care for S.D. In March 2021 S.D. was with A.D. on weekends. By November 2021, he was staying with her for at least three days per week – from Tuesday until Friday. In January 2022, L.P. broke her ribs.

A.D. took on an even greater role with S.D. and continued to provide increased care whenever L.P. was unable to care for S.D. because of work commitments or medical appointments in Ottawa. [ 40 ] Arguably, by the July 18, 2022 when the Current Status Review was commenced, the court and parties should have considered whether A.D. should be included in the order as a caregiver. Prior to the T.E. decision, caregivers were not automatically added as parties to proceedings.

As of July 18, 2022, both sets of grandparents were working co-operatively to ensure S.D.’s care with the hope that the parents would be able to address the protection concerns. Neither were seeking party status.

[41] In January 2023, the Society amended the Current Status Review Application to focus on a permanency plan for S.D. Counselfor L.P. queries why the Society would seek to add A.D. at this stage in the proceedings. Her submissions rest largely on a finding thatL.P. is the primary caregiver, and that A.D. is not a caregiver.

She submits that it is factually incorrect to suggest that A.D. provides carethree days per week but does not dispute the fact that S.D. has been in A.D.’s care every Tuesday afternoon until Friday afternoon for atleast the past year and one half. [42] The grandparents live in different communities. L.P. is in Parry Sound and A.D. lives in Dunchurch – approximately 30 minutesaway. Until approximately two months ago, A.D. provided all of the transportation between the residences for S.D.

There does notappear to be any specific reason why L.P. would take over this role at this stage, but she has. [43] Counsel for L.P. submits that there is no evidence in the Society’s affidavit of any conflict between the grandparents. That doesnot mean that there is no conflict. The affidavits of L.P. and M.P. seek to diminish A.D.’s role as a caregiver, challenge her motive forproviding care and suggest that she does not fully understand S.D.’s needs.

L.P.’s affidavit claims that A.D. is not providing appropriatecare by suggesting that she treats S.D. like a baby and does not provide him with the independence and ability to grow. M.P.’s affidavitsuggests that A.D. is biased and that she only wants custody for monetary and reputational possessive purposes. She claims that A.D. hasmentally harassed her and deceived others. These comments in M.P.’s affidavit seem contrary to her submissions to this Court that she isprepared to foster and nurture a relationship between S.D. and his paternal side of the family.

Moreover, none of these issues have beenraised in the past, nor have they been brought to the attention of the Society as concerns for S.D.’s well-being. [44] Considering all of the circumstances of this case, the Court is satisfied it is appropriate to add A.D. as a party to theseproceedings. [45] As noted in A.M. v Valoris Pour Enfants et Adultes de Prescott-Russel, S-M.N., S.G. and C.P., 2017 ONCA 601 atparagraph 24, it is not necessary for all factors to favour the person seeking party status for the court to add him or her. [46] Importantly, the Court is satisfied that it is in S.D.’s best interests that A.D. be added as a party.

Counsel for A.D. has providedevidence with respect to A.D.’s caregiving role for S.D. She has been providing care since at least March 2021 – over half of his life. This care has been regular and consistent – from Tuesday to Friday every week. S.D. has a close bond with A.D. A.D. providesimportant back up care when L.P. is unavailable or unable to care. Both of these caregivers are grandparents, neither likely seeking torecommence parenting roles at this stage in their lives. All of the factors set out in subsection 74(3) of the CYFSA with respect to bestinterest considerations apply to L.P. and A.D. equally.

S.D.’s physical, mental and emotional needs are being met within A.D.’s home. A.D. promotes and assists S.D. in developing a positive relationship with his mother, his maternal grandmother and his paternal side ofthe family. She has provided continuity in his care. She provides him with a community and a place within his extended family. S.D. isbonded with A.D., her children and her grandchildren. There is a risk that a change in his placement may create harm to him. [47] There is a reason why A.D. has had to take on an increasing role in caring for S.D. over the years.

It is important for the Court tohave her participation in order to gain a full understanding of her role, his connection to her and the support she can provide. [48] The main objection raised by Counsel for the maternal grandmother is that of delay. She submits that it is not in S.D.’s bestinterest for the matter to be delayed any further. There is no doubt that this matter has been before the courts for too long; longer thanthe timelines provide. Pursuant to section 122 (1)(

a) of the CYFSA, “the court shall not make an order for interim society care….thatresults in the child being in the care and custody of a society for a period exceeding 12 months, if the child is younger than 6 on the datethe court makes the order.” S.D. will be four years of age in December and has been involved in child protection proceedings sincebirth. [49] This matter does need to move forward, and the Court must be concerned about delay. That said, the addition of A.D. will notdelay the matter significantly. A.D. has been caring for S.D. and is capable of putting forward a plan of care.

The Current Status ReviewApplication was amended on January 18, 2023. The maternal grandmother has attended the Court proceedings with M.P. throughout andwas aware of the amendment in January 2023. She was granted party status on April 19, 2023 and has not filed an Answer or Plan ofCare. [50] Counsel suggests that she need not file a plan as she has been caring for S.D. since March 2021 and the Society has not raised anyconcerns about her ability to care.

While the Society has not raised any concerns about her care, if L.P. contemplates a plan of carewithout the contribution of A.D., she needs to set out what that plan of care will look like so that it may be properly considered. [51] L.P. still requires time to file her answer and a mutual filing deadline can be established. A.D. is prepared to engage in mediationwhich is important given the issues around education. The fact that S.D. is school aged, does create some tension given that thegrandparents live in two different school catchment areas.

L.P.’s affidavit suggests that S.D. has been enrolled to attend school in ParrySound, with his cousins. [52] The autonomy of the biological family is important and Counsel for L.P. submits that these proceedings should focus on thereunification of S.D. with his mother. The paramount purpose of the CYFSA is to promote the best interests, protection and well-being ofchildren. Where support for the autonomy of the family unit is consistent with that purpose, societies should support the parents in theircare for the children.

While one would continue to hope that either, or both of S.D.’s parents will be able to resume care of him, neitherare in a position to do that now. It is time to stop hoping and to start planning. There is no evidence to indicate that A.D. is not preparedto support M.P. or B.D.’s relationship with S.D. S.D. needs a permanency plan and his care plan for the past 2.5 years has included animportant contribution by both sets of grandparents. [53] Given this Court’s decision to exercise its discretion under Rule 7(5) of the FLR, it is not necessary to determine whether A.D. isa parent or a statutory party.

These are important issues in an area where there is considerable discussion and change. In CatholicChildren’s Aid Society of Toronto and C.P.I, R.S. and J.I. 2023 ONCJ 289 , Justice Sherr sets out a comprehensive overview ofthe statutory provisions and rules relating to the addition (and in that case, the removal of a party) to proceedings. At paragraph 52,Justice Sherr notes that “T.E. sends the message that child protection agencies and courts should be vigilant to ensure that all parents, asdefined by the Act, should be named as parties”.

[ 54 ] At paragraphs 30 and 31, Justice Sherr summarizes some of the important principles from the T.E . decision. [30] The Court of Appeal wrote the following regarding party status under the Act:

a) A motion for party status must be determined before a motion for withdrawal.

b) Party status in child protection proceedings can arise in one of two ways: (

i) pursuant to subrule 7 (5) of the Family Law Rules ; or (ii) by way of provincial or federal statutes, which both define party status. The Family Law Rules provide a discretionary approach. The statutes are not discretionary: if a person is a “parent”, as defined by either statute, the court has no jurisdiction to find otherwise. See: Catholic Children’s Aid Society of Toronto v. D.L., 2014 ONCJ 587 . [2] c) Subsection 74(1) of the Act provides that a “parent” includes: (

i) an individual who has lawful custody of the child; and (ii) an individual who has a right of access to the child.

d) Once someone becomes a kin caregiver, they are no longer a foster parent and are not excluded from being a party. The defining feature of a foster parent is that they receive compensation for caring for the child. e) “By granting custody to the kin care providers, they become the ‘custodial parents’ for the child”. See: SMCYFS v. D.D., 2021 ONSC 1994 , at paras. 41 and 47 .

f) If, at the time of the motion, a person has lawful custody of the child or a right of access to the child, they are a parent and should have party status. This will include anyone who has temporary care and custody of the child or a right of temporary access to the child.

g) The court rejected the line of cases that state that the determination of who is a parent and who has party status is limited to the time the protection application or the status review application is issued. The court stated that such a restriction was not contained in the Act.

h) The court wrote at paragraph 52 that the appellant, who, at the time of the motion, had “lawful custody of the child” and an order for access to the child, and was not a “foster parent”, met the definition of “parent” in subsection 74 (1) of the Act and so had a statutory entitlement to party status pursuant to subsection 79(1) of the Act. [31] By determining that any person who obtains a temporary custody or access order to the child during a child protection proceeding is a parent and by extension could be made a party to the case, on motion, the T.E . decision has expanded who might be parties in a case.[3] [ 55 ] In Children’s Aid Society of Toronto v.

B.H. and D.K., 2023 ONCJ 376 , (“ B.H .”) Justice Sherr references Children’s Aid Society of Toronto v. R.E. 2023 ONCJ 366 (“ R.E. ”) where Justice Sirivar reminds of the important constitutional implications and the obligations and rights bestowed upon parties who are added to child protection proceedings.

In B.H. , Justice Sherr granted the father’s girlfriend and the maternal grandmother access as access recipients as opposed to access holders, noting at paragraph 67 that “Making these distinctions is even more important since the T.E. decision so that courts don’t inadvertently create parent and party status for a plethora of individuals who might have access with a child – some who would not even want to be parties.” [ 56 ] In the facts before this Court, A.D.’s right to access is referenced as an obligation on L.P. to “arrange for reasonable access to A.D.” under the terms and conditions of the order.

Counsel for A.D. submits that this is an order for access making A.D. a parent within the definition of subsection 74(1) of the CYFSA . Counsel for L.P. submits that A.D. does not have a right to access and therefore is not a parent. [ 57 ] The condition to makes reasonable arrangements for access, is not a clear order granting A.D. specified access to S.D. However, it is not a temporary, without prejudice order for access, as was the case in R.E.

In R.E. , Justice Sirivar dismissed the society’s request to have the maternal aunt added as a party given that she had withdrawn her consent, was subject to a without prejudice temporary order, and had not received independent legal advice. [ 58 ] The condition to make reasonable access arrangements for A.D. was included in the Final Order of March 1, 2022 and has continued in the Temporary Order of August 18, 2022. [ 59 ] In B.H. , Justice Sherr was asked to consider varying a temporary order prior to trial.

The child had been in the care of the society and the mother put forward her mother as a possible placement and the father put forward his girlfriend as a possible placement. Although Justice Sherr declined to vary the child’s placement, he found that it was in the child’s best interest to have access to these two potential caregivers in advance of a trial. He did not want to make them statutory parties at this stage as that was not necessary.

They were not seeking party status, their plans were being put forward by parties to the proceedings and the addition of them as parties would delay the proceedings and entitle them to file disclosure and potentially oblige them to disclose records concerning themselves. [ 60 ] The facts before Justice Sherr and Justice Sirivar can be distinguished from the facts in this case in a number of important ways. A.D. has legal counsel. She is seeking party status. The current order before the court is a long-standing order.

It is not an order made to allow for increased assess before making a determination as to whether the child should be placed with a particular caregiver, nor is it an order to assess how the caregiver manages extended access, as was the case in B.H.

It is a condition that was not included in the order until a regular, consistent access routine had been established. [ 61 ] Given the length of time that this condition has been in place and given the consistency in which it has been applied (ie., access every week from Tuesday to Friday for over a year) it is a right that A.D. has to access which if not exercised reasonably by L.P. could result in the Society seeking to enforce that condition of the order.

In this context, it is an access order which entitles A.D. to party status as a parent. [ 62 ] However, as noted above, even if A.D. is not a parent as defined by the CYFSA , this Court would exercise its discretion under

subrule 7(5) of the FLR and add A.D. as a party to these proceedings. [ 63 ] Accordingly, the following order will issue: a. A.D. will be added as a party to these proceedings. b. The Respondents, L.P. and A.D. shall file an Answer and Plan of Care on or before October 20, 2023; and c. The matter shall return on October 31, 2023 for a case conference and to set next steps. Released: September 13, 2023 Signed: Justice B. C. Oldham