WARNING The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of 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 . . . 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) or 76(11) (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.
ONTARIO COURT OF JUSTICE
DATE: 2021-07-26 COURT FILE No.: CFO-18-16082
BETWEEN:
THE CHILDREN’S AID SOCIETY OF TORONTO Applicant
— AND —
M.E. and D.M. Respondent parents
Before: Justice Sheilagh O’Connell
Heard on: June 25, 2021 Ruling released on: July 26, 2021
Counsel: Kenneth Atkinson....... counsel for the applicant society (responding party on motion) Peter Carlisi............. counsel for the respondent mother (responding party on motion) Paul R. Krumeh............... counsel for respondent father (responding party on motion) So Hyeung (Jennifer) Kim............... counsel for paternal grandmother (moving party)
O’CONNELL J.:
[1] The paternal grandmother, Ms D.M., has brought a motion to be added as a party to this child protection proceeding.
[2] The respondent father, Mr. D.M. (“the father”), supports the paternal grandmother’s motion.
[3] The Children’s Aid Society (“the society”) and the respondent mother, Ms M.E. (“the mother”), oppose the motion.
[4] The child who is the subject of this child protection proceeding is R., who is now 4.5 years old. This child protection proceeding started in January of 2018.
[5] The grandmother’s motion is brought within the status review application. The society is seeking a final order in this application that R. be placed in his mother’s care and custody, subject to the supervision of the society.
[6] R. was placed in the parents’ joint care under a temporary supervision order made on February 8, 2018, but has now been in the mother’s exclusive care and custody subject to a supervision order since January 30, 2019.
Brief Background:
[7] The society’s involvement with the respondent parents date back to November of 2016. There have been multiple child protection investigations and ongoing involvement due to incidents of family violence between the father and mother. During this time period, R. remained in the mother’s care. The society commenced this application on January 23, 2018.
[8] The father has a history of substance misuse and a significant criminal history dating back to 2009, which involve a number of assaults and violence against the mother. During this proceeding, there were at least two periods in which the father was incarcerated for significant periods of time. The father also has an acquired brain injury that impacts his ability to process information.
[9] The mother has a history of alcohol misuse, but according to the society, this is not a recent concern. R. lives with his mother and the mother’s older son, L., from a previous relationship.
[10] R. has been diagnosed with autism and he is receiving support from the society’s developmental resource worker, along with other supports.
[11] The paternal grandmother has been involved in R.’s care since his infancy and shares a close relationship with him. She has never assumed custody of R., but he has often stayed at her home overnights over the years. The child is comfortable in the paternal grandmother’s home and enjoys spending time with her.
[12] On April 23, 2019, during this proceeding, the mother agreed that the paternal grandmother have access with R. on alternating weekends from Saturdays at 12 noon to Sundays at 4 pm. More recently, on March 31, 2021, the mother agreed that the paternal grandmother’s access with R. be expanded to alternating weekends from Friday at 3:20 pm to Monday morning at 8:45 am. This was incorporated into a consent court order.
[13] It is not disputed that the mother and grandmother have also arranged for additional time between R. and his grandmother during the holidays and for other occasions.
[14] R.’s access with his father is at the discretion of the society and his visits typically occur at the paternal grandmother’s home in her presence. The father does not live with the paternal grandmother.
[15] The paternal grandmother has raised a number of ongoing allegations about the mother’s ability to parent R. These allegations include substance misuse, participation in sex work, and a neglect of R.’s needs, such as his education, physical care (potty training), routine, and proper nutrition. This has sometimes led to a contentious relationship between the mother and the paternal grandmother.
[16] The paternal grandmother is seeking an order in this application that R. be placed in her primary care with the mother having parenting time every weekend from Friday after school to Monday morning and with the father having flexible time at his request during the weekdays. She seeks to be added as a party so that she can advance her plan for custody of the child.
[17] The society does not have concerns about the care that the mother provides her son and does not believe that it is in R.’s best interests to be removed from his mother’s care for any reason at this time.
The Law and Governing Principles:
[18] In child protection proceedings, parties are statutorily defined as the applicant, the society having jurisdiction in the case, the child’s parent(s), and in the case of an Indigenous child, a representative from the child’s community. See: Section 79 (1) of the Child, Youth and Family Services Act, S.O. 2017, c. 14 (“CYFSA” or the “Act”).
[19] In addition, section 79 (1) of the Act states that any person, including a child’s foster parent, who has cared for the child continuously during the 6 months immediately before the hearing, is entitled to certain defined participatory rights as set out in the legislation, but shall take no further part in the hearing except with leave of the court.
[20] Further, subrule 7(5) of the Family Law Rules (“the Rules”) provides that the court may order that any person who should be added as a party shall be added as a party, and may give directions for service on that person.
[21] The onus is on the paternal grandmother to prove that she is either a statutory party or that she should be added as a party under subrule 7(5) of the Rules.
[22] The court in Children’s Aid Society of London 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 CarswellOnt 4048 (Ont. Fam. Ct.), set out the following legal principles for the court to consider before adding a party to a child protection proceeding under subrule 7(5) of the Family Law Rules:
(i) whether the addition of the party is in the best interests 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,
(iv) whether the additional party is capable of putting a forward a plan that is in the best interests of the child,
(v) whether the proposed party has a legal interest in the case.
[23] In Children’s Aid Society of Algoma v. V.C., 2011 ONCJ 83, Justice John Kukurin wrote at paragraph 19:
“The case of Children’s Aid Society of London and Middlesex v. S.H., S.W. and D.R., supra, does not 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.”
[24] In Children’s Aid Society of Toronto v. C.K., 2013 ONCJ 342, 229 A.C.W.S. (3d) 450, [2013] W.D.F.L. 4111, [2013] O.J. No. 2917, 2013 CarswellOnt 8525 (Ont. C.J.), Justice Stanley Sherr summarized other principles that are relevant to the court’s consideration at paragraphs 13 to 15 of that decision:
[13] The ability of an existing party to present a plan of placement of a child with a non-party can be a significant consideration in deciding whether to add that non-party. See: Catholic Children’s Aid Society of Toronto v. Dana H., 2009 ONCJ 2.
[14] That someone may have relevant evidence in a case does not elevate them from a witness to party status. See Noik v. Noik, 14 R.F.L. (5th) 370 (Ont. Fam. Ct.).
[15] It is not necessary for the court to determine at this stage whether the plan of the proposed added parties would be successful; the question at this stage is whether their plans merit consideration, despite the delay in bringing it. See Catholic Children’s Aid Society of Toronto v. Dana H., supra.
[25] Justice Sherr added a further principle that in considering the best interests of the child, the level of conflict between the parties and the proposed party and what conflict a child may be exposed to is a relevant factor in determining whether a person should be added as a party. See Children’s Aid Society of Toronto v. C.K., supra, at paragraph 22; Children’s Aid Society of Toronto v. G.M., 2014 ONCJ 209 at paragraph 13.
Application of the Law and Governing Principles to this Case:
[26] In this case, it is acknowledged that the paternal grandmother is not a statutory party under section 79 (1) of the legislation. As well, based on the evidence before me, the paternal grandmother is not entitled to participate pursuant section 79 (3) of the Act. She was not caring for the child continuously during the six months immediately before the hearing.
[27] There is no doubt that the grandmother is very involved in the care for R. She loves him very much and has been a strong support to the mother and the father. But based on her own evidence, R. has been in her care on average, approximately six or seven days/overnights each month in the past two years.
[28] Ms Kim, counsel for the paternal grandmother, submits that the grandmother should be added as a party pursuant to subrule 7(5) of the Family Law Rules, applying the legal principles that have developed. She submits that the grandmother wishes to present a plan of care for the child which will serve the child’s best interests and that granting her party status is necessary to enable the court to determine all of the issues in this case. She further submits that the paternal grandmother’s plan merits serious consideration. Although the father supports her plan, he may change his mind, and he will not be able to adequately present the paternal grandmother’s case.
[29] She relies on the decision of Justice J. P. McDermot in Simcoe Muskoka Child, Youth and Family Services v. M. (B.), 2017 ONSC 535 in which the court states at paragraph 24 of that decision that “there is a substantial difference in a third party advocating a parties’ position as opposed to that party making his or her own case.”
[30] However, in that case, and in the other case Ms Kim primarily relies upon [1], there was no viable parent or community plan before the court. In the case before Justice MsDermot, the child had been apprehended from the care of the mother and both parents acknowledged that they were in no position to care for the child. Both parents were struggling with significant issues and the maternal grandmother (who was seeking to be added as a party) had an unstable relationship with the respondent mother, so it was questionable whether her plan would be advanced. In Catholic Children’s Aid Society of Toronto and Dana H., supra, the child’s parents had disappeared. The society was seeking a disposition of Crown wardship without access (extended society care). There was no party available to present the maternal grandmother’s case, nor any parent before the court.
[31] In the case before me, the evidence establishes that the mother has a very viable plan of care. The society supports the mother’s plan of care. The society does not have any concerns about the care that the mother provides her son. R. continues to be safe in the mother’s care and has been in the mother’s primary care for all of his life, over four years. R. knows his mother to be his “constant caregiver” as the society puts it.
[32] It is not in R.’s best interests to be removed from the mother’s care at this time, which is what the grandmother is seeking to do in her proposed plan of care.
[33] The mother has demonstrated that she is very supportive of the grandmother’s access with R. and recognizes that the child has a close and loving relationship with his grandmother, notwithstanding the conflict between the mother and the paternal grandmother. The mother has consented to all access arrangements and court orders in this case and she has cooperated with the current access schedule.
[34] The addition of the paternal grandmother as a party would also unduly delay this proceeding, particularly since the grandmother is presenting an alternative plan of care for the child. This status review application has been before the court since 2019. The grandmother’s involvement would undoubtedly extend the hearing in this matter. There are already three lawyers involved. The case has exceeded the statutory timelines set out in the legislation and it is in R.’s best interests to have a final resolution as soon as possible.
[35] Further, the addition of the paternal grandmother is not necessary to determine R.’s best interests and all of the issues. The respondent father supports the paternal grandmother’s plan. Indeed, counsel for the respondent father, when questioned, advised the court that the father “unequivocally supports” the grandmother’s plan. The father can, if he wishes, call the paternal grandmother as a witness should this case proceed to trial. The court will have full particulars of the paternal grandmother’s plan through her evidence at trial, as well as any concerns that she has regarding the mother’s plan.
[36] It is not disputed that the grandmother has a very close and loving relationship with R. However, there is a specified order granting the paternal grandmother significant access with R. She does not need to be added as a party to bring any further motions for expanded access. The grandmother can bring her motion under section 104 (2) of the Child, Youth and Family Services Act, S.O. 2017, c. 14.
[37] Finally, the court finds that adding the paternal grandmother as a party will expose the child to further conflict, which is not in his best interests. It is not disputed that the paternal grandmother and the mother have had a conflictual and contentious relationship. The grandmother is extremely critical of the mother’s parenting. Despite this, the mother has cooperated with the court-ordered access between R. and his grandmother because she recognizes the importance of this relationship for him.
Conclusion:
[38] In summary, for all of the above reasons, the paternal grandmother’s motion to be added as a party is dismissed. There shall be no costs ordered. The next hearing in this matter will be a settlement conference.
[39] The court thanks counsel for their helpful submissions and the case law provided.
Date: July 26, 2021 Signed: “Justice Sheilagh O’Connell”
[1] Catholic Children’s Aid Society of Toronto and Dana H., 2009 ONCJ 2, per Justice Stanley Sherr.
