Toronto (North York) File No. C 61360/13

Date: 2014-01-13

Ontario Court of Justice

In the Matter of

The Child and Family Services Act, R.S.O. 1990, c. C-11

And in the Matter of E.M.-D., E.L.-C., J.A.M.-C. and J.P.J.A., children apparently in need of protection.

Between:

The Children's Aid Society of Toronto

Applicant

- and -

G.M., A.D., T.C. and J.C.

Respondents

Ruling

Before the Honourable Justice S.B. Sherr

On January 13, 2014 at Toronto, Ontario

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Appearances

• J. Sherman – Counsel for the CAS
• L. Talbot – Counsel for T.C.
• D. Mclean – Duty Counsel for J.C.
• M. Price – Counsel for J.A.
• S. Isaacs-Reynolds – Counsel for G.M.
• E. Cattani – Articling Student for OCL
• A. Sudano – Counsel for S.T.

Ruling

[1] JUSTICE S.B. SHERR (orally): This is a motion brought by Ms. S.T. to be added as a party in this case. Ms. S.T. describes herself as the stepmother for the children, E.L.-C., born on […], 2005 and J.A.M.-C., born on […], 2008. She is the fiancée of the children's father, Mr. C., who is here before the court, as well.

[2] There are two other children involved in this case. Ms. S.T.'s not making any claim with respect to those children, who are J.P.J.A., born on […], 2010 and E.M.-D., born on […], 2012, who have different fathers.

[3] We are just dealing with the two children in the request to be added as a party, and also to have access to those two children on a temporary basis.

[4] That motion is supported by the father of those two children; it is also supported by the paternal grandmother of those two children, who is a party. The children were apprehended from her care by the Durham Children Aid's Society. It is opposed by the mother of the children. It is opposed by Mr. J.A., who is the father of J.P.J.A.. It is opposed by the Office of the Children's Lawyer who has been appointed to act on behalf of E.L.-C. and J.A.M.-C. and it is opposed by the Society.

[5] I read all the affidavits that have been filed by the parties, the affidavit of Ms. S.T., the affidavit of the father, the mother's affidavit and the Society's affidavit and I heard excellent submissions that were made today on the issue and the case law that was provided to me, which I am quite familiar with since I wrote several of the cases that were presented to me today.

Background and History

[6] In terms of the history of the case, the society first became involved with the children in July of 2013. The mother had left for Jamaica and left the children with another caregiver and the report was made by Ms. S.T., responsibly, that J.P.J.A. had marks on her. The society became involved and determined that the mother had not made adequate arrangements for the children. The two older children, E.L.-C. and J.A.M.-C. were placed with the paternal grandmother, Ms. C. and J.P.J.A. was placed with the paternal grandmother of that child. Subsequently, the child is living with Mr. J.A. now, pursuant to a temporary supervision order. E.M.-D., the younger child, has been in care since that time.

[7] On October 2, 2013 the matter came before the court in Oshawa. E.L.-C. and J.A.M.-C. were apprehended from the care of the paternal grandmother with allegations of physical discipline against them made by the children and there was an order that those children stay in care. The matter then was transferred from Oshawa to Toronto. So that brings us here to today.

[8] We have a number of parties. It has been a complicated case because of the number of caregivers for these particular children and the number of people who have had to make submissions. The paternal grandmother's a named party because Oshawa added her, so she's involved in this case, as well.

[9] We have to consider, as well, that the protection application stayed, for the society, seeking a Society wardship order with respect to the two older children. It is not a Crown wardship case; in making a decision to add parties, that has to be kept in mind, as well.

Legal Framework

[10] The legal principles for this court to determine whether to add Ms. S.T. as a party are set out in paragraphs [10] through [15] of my decision of Children's Aid Society of Toronto v. C.K., 2013 ONCJ 342. The onus is on Ms. S.T. to show that either she is a statutory or regulatory party to be added to the case or she should be added as a party pursuant to subrule 7(5) of the Family Law Rules.

[11] I find, based on the evidence before me that she is not a statutory party, that she is not a party entitled to participate pursuant to subsection 39(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11. She was not caring for the children continuously; she was highly involved with the children based on her evidence. She was a support. She was involved with medical appointments, she was involved with getting the children to a program dealing with the fact that the father was in jail and she was a considerable support for the mother, but she was not, based on the evidence, the person who continuously had control of the children.

[12] In the Children's Aid Society of London and Middlesex v. S.H., S.W. and D.R., as set out in paragraph [11], there are four considerations for the court to consider under subrule 7(5); whether the addition of the party is in the best interest of the children, whether the addition of the party will delay or prolong the proceedings unduly, whether the addition of the party is necessary to determine the issues and whether the additional party is capable of putting forward a plan that is in the best interests of the child.

[13] Other principles which I set out in that case are the ability of an existing party to present a plan. Placement of the child with a non-party can be a significant consideration in deciding whether to add that non-party. Someone having relevant evidence to a case does not elevate them from a witness to a party status. It is not necessary for the court to determine at this stage whether the plan of the proposed added party could be successful; the question at this stage is whether their plan merits consideration, despite the delay in bringing it. And also within the case of Children's Aid Society of Toronto v. C.K., I set out the principle that in determining the best interests of the children, the level of conflict between the parties and what they may be exposed to is a very relevant factor in determining that particular issue.

Application of Legal Principles

[14] So, dealing with the facts at hand, I find that Ms. S.T. has not met her onus to show that she should be added as a party in this case at this point in time. She may be able to establish that she should be added as a party in the future.

[15] Based on the evidence in front of me, she has an aligned plan with the father. Her intention is to live with the father when he is released from jail, to be married to him, to raise the children together. The father is a party to this case, the father does have a lawyer, the father is perfectly capable, at this point in time, with presenting a plan either for himself, as he has, or with Ms. S.T. in the alternative. He has the ability, if he wishes, to propose her as an alternative to himself with her alone. So she has the ability, through his plan, to be able to get her plan to the court and to provide evidence to the court. So that can be done through the father. So that is the first factor that I have to consider.

[16] The argument that they may not be together in the future, they may break up in the future, I agree with Ms. Tanny's submission that that's speculative at this point, but if it does happen in the future we can revisit that issue. If circumstances change then it might be a different argument at that point in time, but it is premature to have her added as a party.

[17] I have to consider the factor of delay. There is no question that adding yet another party to this case at this time would create more delay. There is another person who has to be served with all kinds of court papers, that has to be dealt with who has an interest in the proceeding. If the society and the mother are working towards a re-integration plan that's opposed by Ms. S.T., that would delay the proceeding even longer. So it would create delay. Delay in itself is not the reason not to add her as a party, but it is a factor for the court to consider, especially since she can put her plan through the father.

[18] The court has to consider, as well, the merits of her plan at this point in time. At this point in time it does not look great. Her plan is to live with the father, who is in jail and has been in jail for quite some time, has a serious criminal conviction and any court is going to question really whether that is a viable plan for them to live together and raise the children together. So at this point it does not look that good. The kinship plan of the Society rejected the plan mainly on that particular basis.

[19] Ms. S.T. would have other obstacles to face, as well. She has a criminal history for breaches of trust in the past. In 2011, she was found guilty of taking drugs into the institution and she has just finished probation for that. So those were factors which have to be considered.

[20] Then we have to, this goes to both the best interests of the children and also the viability of the plan and probably the most serious concern that the court has, is the high level of conflict which is likely to occur by the addition of Ms. S.T. to the case at this point in time. The evidence was overwhelming about that. Whether, who is to blame for that high conflict really is not the issue. We see texts and email messages and Facebook postings which demonstrate an incredible sense of immaturity and high conflict. These children have been through a lot. They have been taken away from the mother, they then have been taken away from the paternal grandmother and it is wonderful that they have people here who love them and want to care for them and be with them, but they have been through a terrible time already. What these kids need is for the adults in their life to be mature, to put their interests first, put aside their own petty disputes and to support each other. They need to support each other. They cannot be posting things on Facebook telling about how terrible the other parent is or how bad the mother is or how bad Ms. S.T. is or how bad the father is. They cannot be doing that. These children need the support of every adult in their life. They cannot be pulling and tearing at each other.

[21] We see how upsetting it is in the evidence, to E.L.-C., in particular, to be placed in the middle of this. So we cannot have that degree of conflict and that's the biggest reason at this point in time that it does not merit adding Ms. S.T. as a party because of that high level of conflict. It is not in the best interests of the children to add her and it is also why her plan is not viable at this point in time. This court would have to see a real transformation in terms of attitude and approach to see that that has a viability of being a good plan at this point.

Conclusion and Order

[22] At this point in time, it appears that the most viable plan is the plan of the mother, who is taking steps, based on the material, to address the risk concerns. She is not there yet, I can see that in the material, but she is working towards that and that should be the focus of the court, to provide the children with that stability. If she cannot do it, then we have to look at alternatives, at that point in time, and it may be at that point in time, Ms. S.T., that you would be an alternative then, but not yet is basically what I am saying. And the court does appreciate the fact that you have stepped forward and have made this application. It is a good thing that you did that. You are trying and you want what is best for the children, there is no doubt in my mind about that, that that is what you want for these children and you are worried for them. It is really remarkable that you would step forward and do something like this. But for the factors that I have set out, it is not time yet to do that.

[23] So that is the ruling that I am going to make. I am going to order, though, that Ms. S.T. can have supervised access to the children, the form, duration and frequency in the discretion of the Society. And what is going to be really important, Mr. Kelly, is protecting the children from conflict. So if there is a lot of conflict, you have to cut it off. But if Ms. S.T. acts in a responsible manner and mother acts in a responsible manner, father acts in a responsible manner, let us have these people who love these children involved in their lives. It is up to you guys, we are going to be judging it based on your behaviour. So that is the order. I am making an access order in your favour today, so I am going to do that.

[24] Now, it is late in the day, I think it would be a good idea at this point to put it over to another day and then we can have a case conference and the next steps at that point, Ms. Sherman, okay?

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Laurel M. Campbell, certify that this document is a true and accurate transcript of the recording of CAS v. Myles et al in Toronto Family Court, held at 47 Sheppard Avenue East, taken from Recording No. 4831_F_20140113_143414__10_SHERRS, on January 13, 2014, which has been certified in Form 1.

Date: _______________

Laurel M. Campbell, Court Reporter

COPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND HAVE NOT BEEN PAID FOR UNLESS THEY BEAR THE ORIGINAL SIGNATURE OF LAUREL M. CAMPBELL, AND ACCORDINGLY ARE IN DIRECT VIOLATION OF ONTARIO REGULATION 587/91, ADMINISTRATION OF JUSTICE ACT, JANUARY 1, 1990.