WARNING

THIS IS AN APPEAL UNDER THE CHILD AND FAMILY SERVICES ACT AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45(7) The court may make an order,

(a) excluding a particular media representative from all or part of a hearing;

(b) excluding all media representatives from all or a part of a hearing; or

(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 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.

45(8) 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.

45(9) 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.

Court of Appeal for Ontario

Date: 2017-07-13

Docket: C63662

Judges: Hoy A.C.J.O., van Rensburg and Roberts JJ.A.

Between

A.M. Appellant

and

Valoris Pour Enfants et Adultes de Prescott-Russell, S-M.N., S.G. and C.P. Respondent

Counsel: Julie Bergeron, for the appellant Anaïs Paré-Chouinard, for the respondents

Heard: June 19, 2017

On appeal from the judgment of the Divisional Court (Swinton, Whitten and McCarthy JJ.), dated November 18, 2016, allowing an appeal from the order of Justice Kane of the Superior Court of Justice, dated July 26, 2016.

Reasons for Decision

Introduction

[1] The child, A.N., was made a ward of Valoris pour enfants et adultes de Prescott-Russell (the "Society") at the age of two months. In December 2015, when he was seven months old, he was placed with a foster-to-adopt mother (the "F-A mother"). The Society filed a status review application in January 2016 requesting the child be made a Crown ward with no access rights to the parents. As detailed in their application and plan of care dated June 7, 2016, the Society's position was that if the child was made a Crown ward, it would support the F-A mother as the adoptive parent for the child. An uncontested trial of the Society's application for Crown wardship was scheduled and adjourned pending the opportunity for the biological parents to move to set aside their noting in default. No such motion was brought. A paternal aunt and her partner expressed an intention to adopt the child early in 2016. In June 2016 the Society decided to support that plan instead. The paternal aunt and her partner filed a motion seeking to be added as parties and for a temporary order for care of the child. That motion was adjourned. The F-A mother brought a motion seeking to be added as a party to the child protection proceeding.

[2] There is only one issue on this appeal: whether the Divisional Court erred in overturning the motion judge's decision to add the F-A mother as a party to the child protection proceeding.

[3] In our view, it did. We would allow the appeal and reinstate the motion judge's order to grant the F-A mother party status in this matter.

The Motion Judge's Decision

[4] The motion judge reviewed the child's history, including the circumstances leading to the Society's wardship, and the evidence offered by the F-A mother, of the child's progress while in her care. He noted that the F-A mother was coordinating and pursuing three areas of medical treatment for the child. He also noted the difference between traditional foster parents and foster-to-adopt parents: the clear understanding between the Society and foster-to-adopt parents is that children are placed with them with an ultimate goal of adoption. Foster-to-adopt parents are assessed with the view that they will adopt the child. It was also undisputed that the child's birth mother is in favour of an adoption by the F-A mother and that both women agree that there should be continuing access with the birth mother if the child is adopted by the F-A mother.

[5] The motion judge considered conflicting jurisprudence as to whether foster parents should be made parties to a proceeding like this. He quoted this court's comments in L.(R.) v. Children's Aid Society of the Niagara Region (2002), 34 R.F.L. (5th) 44, at para. 38 that "… prior to the initial hearing foster parents are meant to provide temporary care for children pending their return to their family or transfer to a more permanent placement. They are not intended to provide a comparative basis for the determination of the child's best interests from the outset (emphasis added)." He noted that in this case the initial hearing and finding that the child was in need of protection had already occurred. He relied on this court's statement in L.(R.) at para. 50 that, "depending on the circumstances, the ultimate determination of a permanent placement may well involve such a contest [between the child's family and the child's foster parents.]. When it does, it is the best interest of the child, not the rights of the family or the foster parents that is determinative of the outcome."

[6] The motion judge began his analysis of whether the F-A mother should be added as a party to the child protection proceedings, by observing that s. 1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA") clearly states the purpose of the CFSA:

The paramount purpose of this Act is to promote the best interests, protection and well being of children.

[7] He noted that s. 39(1) provides who will automatically be parties to a child protection proceeding, but does not limit parties to those listed. He also noted that s. 39(3) of the CFSA provides a limited right of participation for non-parties to a child protection proceeding. Those sections provide as follows:

39(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.

39(3) Any person, including a foster parent, who has cared for the child continuously during the six months immediately before the hearing,

(a) is entitled to the same notice of the proceeding as a party; (b) may be present at the hearing; (c) may be represented by a solicitor; and (d) may make submissions to the court,

but shall take no further part in the hearing without leave of the court.

[8] The motion judge concluded, at para. 47, that "[g]ranting such rights to non-parties, including a foster parent, is not an indication by the legislature that a foster parent should not be made a party."

[9] He considered the facts of the case and, at para. 53, found that "this [F-A mother]; not the biological parents, their extended family members, nor the Society, is in the best position to inform the Court on a Crown wardship hearing as to what the specific needs are and what is in the best interests of this child."

[10] He ordered that the F-A mother be a party to the proceeding or, if a higher court disagreed with that determination, that the F-A mother have full rights to participate in this proceeding pursuant to s. 39(3) of the CFSA.

[11] After the motion judge's decision, the Society amended its application to the current custodial application under s. 57.1 of the CFSA supporting the paternal aunt's plan of care.

Divisional Court Decision

[12] The Divisional Court noted that the motion judge had not mentioned rules 7(4) and 7(5) of the Family Law Rules, O. Reg. 114/99:

7(4) 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).

7(5) 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.

[13] While it rejected the Society's argument that the effect of r. 7(4) is that the court cannot make a foster parent a party in a child protection case, it concluded that the discretion to add a party under r. 7(5) should be exercised with caution and a foster parent should be added as a party only in exceptional circumstances. In the case of foster parents, the court should consider their existing participation rights under s. 39(3) of the CFSA.

[14] The Divisional Court held that in determining whether a foster parent should be added as a party, the court should consider the following criteria:

(1) Is adding the party necessary for a determination of the issues in the case?

(2) Would adding the party cause delays in the process?

(3) Does the individual have a legal interest in the child protection proceeding?

[15] It concluded that the motion judge failed to consider all these criteria such that the Divisional Court was entitled to interfere with the motion judge's exercise of discretion.

[16] While the motion judge concluded that it was necessary to make the F-A mother a party, in the Divisional Court's view, he overlooked the existing presumptive rights of participation of the F-A mother under the CFSA and the fact that she could request permission from the court to have her participatory rights expanded. Further, in its view, the Society had relevant information in its files and could call the F-A mother as a witness if necessary.

[17] It reasoned that adding the F-A mother as a party would add delay since she opposed the Society's current plan.

[18] It also held that the F-A mother did not have a legal interest in the proceeding.

[19] Since the alternative remedy of expanded participatory rights proposed by the motion judge in paragraph 63(b) of his reasons was not reflected in the signed Order under Appeal, the Divisional Court did not address it.

Analysis

[20] In our view, both r. 7(4) and s. 39(3) of the CFSA preserve the court's discretion to add a foster parent as a party to a child protection proceeding. We agree that the power to add such a person as a party should not be exercised lightly. However, the Divisional Court circumscribed the exercise of that discretion too narrowly. While delay and legal interest are relevant, they are not, by themselves, determinative. The overarching consideration is the child's best interests. The motion judge determined that on the facts of this case, the F-A mother's participation as a party was both necessary and in the child's best interests. Further, we do not agree with the Divisional Court's assessment of the delay and legal interest factors.

[21] Absent a palpable and overriding error, an error in law, or an unreasonable exercise of discretion, the motion judge's decision should not have been interfered with. In our view, no such error was present here.

[22] The decision often cited for establishing criteria for adding parties in child protection proceedings is Children's Aid Society of London and Middlesex v. H.(S.), [2002] O.J. No. 4491 (QL). That case suggests, at para. 22, that the relevant questions are:

(i) whether the addition of the party is in the best interest of the child;

(ii) whether the addition of the party will delay or prolong the proceedings unduly;

(iii) whether the addition of the party is necessary to determine the issues; and

(iv) whether the proposed party is a person capable of putting forward a plan that is in the child's best interests.

[23] Whether the person has a legal interest in the proceeding – in the sense that an order can be made in favour of or against such person – has also emerged as a relevant factor: Children's Aid Society of Algoma v. V.C., 2011 ONCJ 83, at paras. 11 and 12.

[24] It is not necessary for all factors to favour the person seeking party status for the court to add him or her: V.C., at para. 19.

[25] We echo Czutrin J.'s comments at paras. 20 and 21 of Catholic Children's Aid Society of Toronto v. S.(R.D.) (2008), 55 R.F.L. (6th) 132, and endorse his list of additional relevant considerations.

[26] In S.(R.D.), a foster parent appealed a motion judge's refusal to grant her party status or expanded participatory rights. On appeal, Czutrin J. granted her expanded participatory rights, specifically, the right to pretrial disclosure as a party and to call and cross-examine witnesses. He stated at paras. 20 and 21:

For very good and appropriate reasons, foster parents' rights are limited prior to an order making the child a Crown ward. At the same time, even if the foster mother were not added as a party, s. 39(3) of the CFSA leaves open (and in fact contemplates) that the court may grant foster parents rights to participate more fully. There is certainly no absolute prohibition against doing so. The motions judge overemphasized the option of placing the child with his grandparents in the context [of] considering the foster parent's rights of participation at this stage. The motions judge should have also considered the impact on the child of the time that has passed in this case without resolution and the people who could best bring to light his best interests. The Act should be read and balanced as a whole.

I find that the Court must, on a case-by-case and contextual basis, consider whether to grant leave to allow foster parents greater rights of participation, up to and including party status. These considerations might include:

1. The age of the child and the time line considerations of the CFSA;
2. Whether there has been a finding of a need of protection at the time the request for participation is made;
3. Whether the foster parents will be called to testify and whether their evidence will be challenged;
4. Whether the persons or parents who had charge of the child at the time of commencement of the proceedings are presenting a plan;
5. The time of continuing placement of the child;
6. Whether there has been any contact with the proposed caregivers;
7. Whether the application has been amended; and
8. Such other considerations that suggest the foster parent's involvement would clarify the best interests of the child. [Emphasis added.]

[27] In this case, the motion judge began with the paramount purpose of the CFSA to promote the best interest and well-being of children: he correctly identified and applied the most important consideration.

[28] He referred, at paras. 52 and 53, to the child's arrival at the F-A mother's home in a state of emotional disarray, and his emotional progress in recovery in the following months. He concluded that, as a result, the F-A mother was in the best position to inform the Court as to the specific needs and best interest of the child. In his view, and in the circumstances of this case, where the Society had changed course after approving the F-A mother to become an adoptive parent, this warranted her involvement. In S.(R.D.) Czutrin J. found a need for expanded participatory rights despite the fact the child was represented by OCL counsel who could neutrally collect and present best interests information to the court. Here, unlike in S.(R.D.), the OCL is not involved.

[29] The motion judge's conclusion that it was necessary to make the F-A mother a party was reasonable.

[30] While delay was not explicitly mentioned in the motion judge's reasons, we disagree with the Divisional Court that there is reason to expect the F-A mother's involvement would add considerable delay. As in S.(R.D.), here too the F-A mother has legal counsel and has not asked to adjourn or delay the proceedings.

[31] The Divisional Court's conclusion that the F-A mother has no legal interest in the proceedings, in our view takes too narrow a view. In the circumstances of this case, while it is correct that no final order could be made against or in favour of the F-A mother at this stage in the proceedings, depending on the outcome of the proceedings, any opportunity for her to adopt the child would be foreclosed. In this sense her legal interests are affected. The decision here however does not turn on the question of the existence, nature or extent of the F-A mother's legal interest. As correctly pointed out by the motion judge, the protection and pursuit of the child's best interests, rather than the rights of the F-A mother, are the central issue.

[32] As for the additional relevant considerations articulated in S.(R.D.), in this case the child has just turned two. He has spent most of his life, since the age of seven months, with the F-A mother. Since the Divisional Court's decision in November 2016, the child has remained in the care of the F-A mother, spending two days each week with his paternal aunt.

[33] The child was found in need of protection on October 22, 2015 at which time he was placed with the F-A mother. Significantly, at the time the F-A mother brought her motion, this was not a case where either parent could regain custody.

[34] If granted no further participatory rights, the F-A mother, who is also the person with "charge of the child at the commencement of the proceeding", and who wishes to ultimately present her own plan, may be denied the opportunity to testify.

[35] The motion judge did not explicitly advert to all these factors in his reasons. However, he conducted a fact-specific and contextual analysis guided by the paramount consideration of the child's best interests. In light of all the factors enumerated above, it was in our view open to the motion judge to find that the F-A mother's involvement in the child protection proceedings as a party would clarify the best interests of the child.

[36] Given this, the Divisional Court in our view erred in interfering in the motion judge's reasonable exercise of discretion.

Disposition

[37] The appeal is allowed.

[38] We reinstate the motion judge's order granting the F-A mother party status in the proceedings about the child.

"Alexandra Hoy A.C.J.O."

"K.M. van Rensburg J.A."

"L.B. Roberts J.A."

[1] The motion judge incorrectly referred to the Children's Law Reform Act, R.S.O. 1990, c. C.12. It is clear from the references to the sections that he meant to refer to the CFSA.