WARNING

The court hearing this matter directs that the following notice 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.

DATE: July 6, 2023 COURT FILE NO. C20619/18 ONTARIO COURT OF JUSTICE

B E T W E E N:

CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO KAREN KSIENSKI, for the APPLICANT APPLICANT

• and –

C.P.I., R.S. and J.I. OLIVIA OPREA, duty counsel assisting the RESPONDENT, C.P.I. RESPONDENTS LAUREN ISRAEL, for the RESPONDENT R.S. THE RESPONDENT J.I. not attending LOUIS ALEXIOU, on behalf of the OFFICE OF THE CHILDREN’S LAWYER, for the subject child

HEARD: JUNE 29, 2023

JUSTICE S.B. SHERR

ENDORSEMENT

Part One – Introduction

[1] The respondent J.I. (the maternal grandfather) is the maternal grandfather of the subject child in this status review application. The child is 8 years old.

[2] The child was placed in the temporary care of the maternal grandfather on April 23, 2018 after he was removed by the Catholic Children’s Aid Society of Toronto (the society) from the care of his mother, C.P.I. (the mother). The protection application was resolved on February 5, 2019 by placing the child with the maternal grandfather for six months, subject to society supervision.

[3] On May 28, 2019, the society issued a status review application seeking an order placing the child in the custody of the maternal grandfather pursuant to section 102 of the Child, Youth and Family Services Act, 2017 (the Act).

[4] The child remained in the care of the maternal grandfather until October 8, 2021, when the maternal grandfather was criminally charged with sexual offences regarding the child’s older sister, who was living with the child and him. The maternal grandfather was required to leave the home pursuant to his criminal release terms.

[5] The status review application was resolved on January 19, 2023, by placing the child in the care of the child’s father, D.S. (the father), subject to society supervision for six months.

[6] The maternal grandfather was found in default in that status review application and did not participate in the resolution of the case. Importantly, no final order was made on that status review application giving him a right of access to the child.

[7] On April 4, 2023, the society issued a status review application seeking a custody order placing the child in the custody of the father pursuant to section 102 of the Act, with access to the mother. It seeks no orders regarding the maternal grandfather This is the application presently before the court.

[8] Consistent with its practice for many years, the society named the same respondents in the status review application that it had named in the prior status review application. [1]

[9] At the first case conference held on May 2, 2023, the court asked that the parties make submissions on the return date about whether the maternal grandfather should be a party to this status review application, and if not, what the court’s authority was to remove him.

[10] The maternal grandfather has not participated in the status review application. He has not attended at court. He has not served and filed an Answer/Plan of Care. He did not respond to the request to make submissions about his party status.

[11] The issues for the court to determine are:

a) If someone is named as a party in an application, whether it is a protection application or a status review application, does that party status automatically roll over to the next status review application?

b) If not, is the maternal grandfather a parent as defined by the Act?

c) If not, should he still be a party to this status review application?

d) If not, what, if any, authority does the court have to remove him as a party once he has already been named?

[12] The mother was self-represented and assisted by duty counsel at this hearing. The mother was unable to provide the court with a clear position on these issues. When she was given the chance to make submissions, she focused on other matters important to her in the case. This was understandable as these are legally technical and complex issues.

[13] The society, the father and counsel for the child all took the following positions at this hearing:

a) The maternal grandfather should not automatically be a party in this status review application just because he was a party in the previous status review application.

b) The maternal grandfather is not a parent as defined by the Act.

c) The maternal grandfather should not be a party to the case.

d) As part of its authority to control its own process, the court has the authority to remove a named party if that party has been named in error.

[14] For the reasons that follow the court agrees with these positions.

Part Two – Brief background

[15] The child is the last of the mother’s three children who have been before the court pursuant to the Act. One of the child’s sisters is now over the age of 18. His other sister has been placed in the custody of a community member pursuant to section 102 of the Act. The child’s sisters have different fathers than the child’s father.

[16] The mother had charge of the child prior to society intervention in April 2018. The child was removed from her care due to several protection concerns and placed in the temporary care and custody of the maternal grandfather on April 23, 2018. The child was found in need of protection on February 5, 2019 and the six-month supervision order placing the child with the maternal grandfather was made the same day.

[17] After the maternal grandfather was required to leave his home in October 2021, the child remained there with the community member who now has custody of his sister.

[18] On November 15, 2021, after a contested motion, the child was placed in the temporary care and custody of the mother.

[19] On August 31, 2022, the society, the father and the mother (the maternal grandfather was no longer participating in the case and had been found in default) consented to a temporary order that the child spend alternate weeks with the mother and the father.

[20] On November 22, 2022, the child was placed in the temporary care and custody of the father, subject to society supervision. He has remained with the father since that time. The status review application was resolved on January 19, 2023 (again without the participation of the maternal grandfather) placing the child with the father, subject to society supervision for six months, with access to the mother.

Part Three – Children’s Aid Society of London-Middlesex and T.E.

[21] The court recognizes that since the maternal grandfather has not filed an Answer/Plan of Care in this status review application, it could find him in default and proceed in his absence without removing him as a party.

[22] Subrule 10 (5) of the Family Law Rules (all references in this decision to rules are to the Family Law Rules) states:

No answer

10 (5) The consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply, with necessary changes, if a respondent does not serve and file an answer.

[23] Subrule 1 (8.4) reads as follows:

Consequences of striking out certain documents

(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).

2. The party is not entitled to participate in the case in any way.

3. The court may deal with the case in the party’s absence.

4. A date may be set for an uncontested trial of the case.

[24] The court prefers to deal with the party status issue now. If the court does not make the section 102 custody order requested by the society, there will be another status review application and this issue will arise again. Further, the recent Court of Appeal decision in Children’s Aid Society of London-Middlesex CAS v. T.E., 2023 ONCA 149 (T.E.) regarding party status in child protection cases has created considerable discussion in the child protection community. It would be helpful to that community for courts to provide some guidance about the interpretation and application of the principles set out in that case.

[25] In T.E., the society issued a protection application when the subject Indigenous child was two months old. In June 2021, the child was placed (at age six months) in the temporary care and custody of a kin caregiver. The child remained with the kin caregiver from June to December 24, 2021, when the child went on an extended visit with a maternal aunt. That visit kept being extended.

[26] On February 3, 2022, the kin caregiver served a motion to be added as a party. On February 6, 2022, the child’s biological father served a motion to terminate the protection application on the basis that a customary care agreement was going to be signed placing the child with the maternal aunt. On February 23, 2022, everyone but the kin caregiver signed the customary care agreement.

[27] On April 1, 2022, the court placed the child with the maternal aunt on a temporary without prejudice basis. The kin caregiver obtained a temporary without prejudice order for overnight access to the child.

[28] The motions were heard on April 22, 2022. The motions judge, relying on the customary care agreement, found that the case was settled, allowed the protection application to be withdrawn and dismissed the kin caregiver’s motion to be added as a party under subrule 7 (5).

[29] The kin caregiver successfully appealed the decision to the Court of Appeal.

[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]

Part Four – Statutory and regulatory parties

[32] Subsection 79 (1) of the Act sets out who is a statutory party in a proceeding. It reads as follows:

Parties

79 (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. In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

[33] A parent is defined in subsection 2 (2) of the Act as follows:

Interpretation, “parent”

2 (2) Unless this Act provides otherwise, a reference in this Act to a parent of a child is deemed to be a reference to,

(a) the person who has lawful custody of the child; or

(b) if more than one person has lawful custody of the child, all of the persons who have lawful custody of the child, excluding any person who is unavailable or unable to act, as the context requires.

[34] Subsection 74 (1) expands the definition of parent for the purpose of Part V of the Act (which is applicable here) as follows:

“parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:

1. A parent of the child under section 6, 8, 9, 10, 11 or 13 of the Children’s Law Reform Act.

2. In the case of a child conceived through sexual intercourse, an individual described in one of paragraphs 1 to 5 of subsection 7 (2) of the Children’s Law Reform Act, unless it is proved on a balance of probabilities that the sperm used to conceive the child did not come from the individual.

3. An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.

4. In the case of an adopted child, a parent of the child as provided for under section 217 or 218.

5. An individual who has lawful custody of the child.

6. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family, or has acknowledged parentage of the child and provided for the child’s support.

7. 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.

8. An individual who acknowledged parentage of the child by filing a statutory declaration under section 12 of the Children’s Law Reform Act as it read before the day subsection 1 (1) of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 came into force; (“parent”)

[35] Paragraph 1 of subsection 79 (1) of the Act incorporates the definition of parent set out in section 6 and paragraphs 1-5 of subsection 7 (2) of the Children’s Law Reform Act. [4] These provisions read as follows:

Birth parent

6 (1) The birth parent of a child is, and shall be recognized in law to be, a parent of the child.

Exception, surrogacy

(2) Subsection (1) is subject to the relinquishment of an entitlement to parentage by a surrogate under section 10, or to a declaration by a court to that effect under section 10 or 11.

Presumption

7(2) Unless the contrary is proven on a balance of probabilities, there is a presumption in respect of a child conceived through sexual intercourse that a person is, and shall be recognized in law to be, the parent referred to in subsection (1) if any of the following circumstances applies:

1. The person was the birth parent’s spouse at the time of the child’s birth.

2. The person was married to the child’s birth parent by a marriage that was terminated by death or judgment of nullity within 300 days before the child’s birth or by divorce where the judgment of divorce was granted within 300 days before the child’s birth.

3. The person was living in a conjugal relationship with the child’s birth parent before the child’s birth and the child is born within 300 days after they cease to live in a conjugal relationship.

4. The person has certified the child’s birth, as a parent of the child, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.

5. The person has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.

[36] The legislature has set out an expansive list of who is a “parent” and therefore a statutory party for the purposes of a protection proceeding in subsection 74 (1). But the definition is not without limits. For example, the list is an exhaustive, not an inclusive one. See: Catholic Children's Aid Society of Essex v. K.W., 1983 ONCJ 4465 (Ont. Co. Ct.); J.S. v. S.M., 2022 ONSC 2535, supra, par. 64.

[37] Subrule 7 (3) sets out who must be named as parties in a case. It reads as follows:

Persons who must be named as parties

(3) A person starting a case shall name,

(a) as an applicant, every person who makes a claim;

(b) as a respondent,

(i) every person against whom a claim is made, and

(ii) every other person who should be a party to enable the court to decide all the issues in the case.

[38] Paragraph 2 of subrule 7 (4) sets out who is required to be named a party in cases involving children, unless the court orders otherwise. It reads as follows:

Parties in cases involving children

(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, Youth and Family Services Act, 2017, shall be named as a party, unless the court orders otherwise:

1. A case about decision-making responsibility, parenting time or contact with respect to a child.

2. A child protection case.

3. A secure treatment case (Part VII of the Child, Youth and Family Services Act, 2017).

[39] In Children’s Aid Society of Toronto v. T.- J.M., 2010 ONCJ 701, this court found that the persons listed in subrule 7 (4) supplemented the persons who should be named as parties that are contained in the Act. It meant that the children’s grandparents, who had assumed primary care of the children prior to being brought to a place of safety, should have been named as parties to the protection application.

[40] A person who qualifies as a statutory parent must be added as a party. However, the court has the discretion under subrule 7 (4) to order otherwise, for persons who the subrule states shall be named as parties to a child protection case. See: J.S. v. S.M., 2022 ONSC 2535, supra, par. 79. This means that if any party wishes the court to order otherwise, they should bring a motion to the court for that relief.

Part Five – Is the maternal grandfather automatically a party to this status review application because he was a party in the previous status review application?

[41] The answer to this question is no.

[42] A status review application is an application that is discrete from any prior protection application or status review application. It is this court’s view that if a person no longer meets the criteria for being a party either under the Act or the rules they should not be named as a party in a new status review application.

[43] Sections 113 to 116 of the Act are statutory provisions governing status review applications.

[44] Subsection 113 (5) of the Act sets out who is to receive notice of a status review application. It reads as follows:

Notice

113 (5) A society making an application under subsection (2) or receiving notice of an application under subsection (4) shall give notice of the application to,

(a) the child, except as otherwise provided under subsection 79 (4) or (5);

(b) the child’s parent, if the child is younger than 16;

(c) the person with whom the child was placed, if the child is subject to an order for society supervision described in clause 116 (1) (a);

(d) the person to whom custody of the child was granted, if the child is subject to an order for custody described in clause 116 (1) (b);

(e) any foster parent who has cared for the child continuously during the six months immediately before the application; and

(f) in the case of a First Nations, Inuk or Métis child, the persons described in clause (a), (b), (c), (d) or (e) and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.

[45] Subsection 113 (5) of the Act expands the number of persons who may participate in a status review application. It includes the persons who would be parties under subsection 79 (1) of the Act (except for parents of children 16 and over) and would usually include persons who are required to be named as parties pursuant to subrule 7 (4), since they are likely caring for the children pursuant to a court order. However, it does not automatically include persons who were parties in the previous application.

[46] Unfortunately, it is common in child protection cases for caregivers to come and go from children’s lives. There are sometimes multiple status review applications in a case as circumstances change. A person may be a caregiver for a child in 2018, be defined as a parent and become a party for the purpose of that proceeding. However, if that person has not had contact with the child for several years and no longer meets the definition of parent, they will not meet the criteria for being a party on a status review application.

[47] This interpretation is consistent with the paramount purpose of the Act set out in section 1 – to promote the best interests, protection and well-being of children. The Court of Appeal in T.E. emphasized that it is in the best interests of children that persons who are defined as parents be able to obtain party status to provide the court with current, relevant information about the child and their care. [5] The corollary to this is that it is not in the best interests of children to include persons as parties to a status review application who are no longer parents as defined by the Act, who don’t have care and control of the children as set out in subrule 7 (4), who are not entitled to notice under subsection 113 (5) of the Act and who are no longer closely involved with the children.

[48] The consequences to a child of automatically rolling over parties from previous protection or status review applications are not benign. Including persons who no longer qualify as parties under the Act or the rules risks making child protection cases unnecessarily unwieldy. Delays and additional costs would occur just through service issues. The “rolled-over parties” would be entitled to full file disclosure, including private and sensitive information about the child. They could delay permanency planning by holding up settlements reached by the other parties. None of these consequences are in a child’s best interests.

[49] There are other consequences of just rolling over parties to the next status review application including: [6]

a) They are entitled to full disclosure of private and sensitive information about the statutory and regulatory parties.

b) They could delay the case and increase the costs to the statutory and regulatory parties.

b) The statutory and regulatory parties will be entitled to receive private and sensitive information about them, even if they don’t want to be involved in the case.

c) They may be exposed to costs claims.

d) They may find it harassing to be constantly served with court documents when they have no interest in participating in the case.

[50] The Court of Appeal in T.E. was alert to this “floodgates” concern in its decision. It wrote the following at paragraphs 48 and 49:

[48] …… The definition of “parent” in s. 74 (1) of the CYFSA is in the present tense – it references a person who has lawful custody, as well as one who has lawful access.

[49] The CYFSA does not call for retrospective consideration to include persons who are no longer providing care. Individuals entitled to party status have custody and/or access at the time of the motion to be added as a party. Consequently, no “floodgate” issue arises.

[51] These comments are consistent with this court’s view that a party to a prior protection application or a status review application is not automatically a party on a subsequent status review application. They must meet the criteria for party status set out in the Act or in the rules and must meet the criteria set out in subsection 113 (5) of the Act to even receive notice of the status review application. As the court said in T.E., “we look at the present tense” in determining who is a parent and a party.

[52] T.E. sends the message that child protection agencies and courts should be vigilant to ensure that all parents, as defined by the Act, should be named as parties.

[53] It is also important that child protection agencies and courts carefully examine whether a person still qualifies as a party on a subsequent status review application and not automatically roll over parties from the prior proceeding. It should also carefully examine if that person is entitled to notice under subsection 113 (5) of the Act.

[54] It will also be a best practice for a child protection agency to include a paragraph in its status review application explaining to the court why it did not include a person who was a party on the previous application. This alerts the court to maintaining oversight of the party status issue.

Part Six – Is the maternal grandfather a parent as defined by the Act?

[55] The answer to this question is no.

[56] The maternal grandfather was a parent, as defined by the Act, when the child was initially placed in his care and custody, subject to society supervision, as he had an order for custody of the child. He was a parent, as defined by the Act, from April 13, 2018 until October 2021. He was a statutory party in the initial protection application and in the subsequent status review application.

[57] However, the maternal grandfather is no longer a parent as defined by the Act. The final order on the prior status review application, dated January 19, 2023, did not give him rights of access to the child. He did not have an order giving him a right of access to the child on the date of this hearing. He also does not meet any of the other criteria for being a parent as set out in the Act.

Part Seven – Should the maternal grandfather be a party in this status review application

[58] The answer to this question is also no. The maternal grandfather was incorrectly named as a party to this status review application.

[59] The maternal grandfather does not meet any of the criteria for being named as a party under subsection 79 (1) of the Act or subrule 7 (4). He is not a party under subrule 7 (3) as no claim is being made against him and his participation as a party is not necessary for the court to decide all the issues in the case. He also does not meet any of the criteria for being a person entitled to notice of the status review application under subsection 113 (5) of the Act.

Part Eight – What, if any, authority does the court have to remove the maternal grandfather as a party once he has already been named as a party in the status review application?

[60] The jurisprudence on the court’s authority to remove a party in a child protection case involve cases where one party wishes to remove a parent as a party because they believe that parent poses a danger to themselves or the child.

[61] Most of these cases have concluded that courts do not have jurisdiction pursuant to the Act or under the rules to remove a parent as a party to a child protection proceeding. See: Children’s Aid Society v. S.B., 2018 ONSC 5301; The Children’s Aid Society of Ottawa v. K.G. and J.R., 2016 ONSC 5034; Children’s Aid Society of Toronto v. L.G., 2012 ONCJ 800, and Halton Children’s Aid Society v. D. R., 2015 ONCJ 314. [7]

[62] However, courts have also held that requests to remove a statutory party should be distinguished from requests to disqualify a person as a parent under the relevant legislation. See: Children’s Aid Society v. S.B., 2018 ONSC 5301, supra; The Children’s Aid Society of Ottawa v. K.G. and J.R., 2016 ONSC 5034, supra; Children’s Aid Society of Ottawa v. K.T., 2021 ONSC 7236.

[63] Here, the court is not being asked to remove a party who is a parent. It is being asked to remove a person who is not a parent as defined by the Act and who was incorrectly named as a party in the status review application.

[64] The court finds that it has the authority to correct this mistake pursuant to its right to control its court process.

[65] In Children’s Aid Society of Toronto v. N.E., 2023 ONCJ 400 (N.E.), this court reviewed the jurisprudence regarding the court’s authority to control its own process at paragraphs 30-37 as follows:

[30] Although the Ontario Court of Justice is a statutory court, it also has the right to control its court process. See: R. v. Felderhof, 2003 ONCA 37346; R. v. Cunningham, 2010 SCC 10; Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43.

[31] In R. v. Fercan Developments Inc., 2016 ONCA 269, the court wrote as follows:

[51] A statutory court also has the power to control its own process. That power is necessarily implied in a legislative grant of power to function as a court of law: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19.

[52] The Supreme Court of Canada has discussed the power of statutory courts to control their process in Cunningham and in Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3. Other than noting that this power cannot contravene explicit statutory provisions or constitutional principles like the separation of power, the court did not discuss the outer limits of a statutory court's ability to control its own process in either decision. However, in both cases, the court treated a statutory court's ability to control its own process as largely parallel to a superior court's ability to control its own process.

[32] The Fercan decision was applied in the child protection context by Justice Melanie Sager in Catholic Children’s Aid Society of Toronto v. S.S., 2021 ONCJ 199, when she relied on the power of the Ontario Court of Justice to control its own process and ordered the production of documents to an interested third party. Justice Sager found that while the Act did not contain a specific provision authorizing the production of these documents, it also did not contain a provision prohibiting such an order being made. Justice Sager wrote at paragraph 116: The case before me demonstrates the importance of statutory courts being empowered to control its process as it involves managing the interests of the parties, promoting the best interests of the children and controlling the involvement of a third party with a legitimate interest who represents the Canadian government and answers to the public.

[33] Justice Sager’s use of the court’s power to control its process was upheld on appeal at the Superior Court of Justice. See: Catholic Children’s Aid Society of Toronto v. S.K.S., 2021 ONSC 5813, and on a subsequent appeal to the Ontario Court of Appeal. See: Catholic Children’s Aid Society of Toronto v. S.K.S., 2022 ONCA 228.

[34] This court relied on the court’s right to control its own process in Children’s Aid Society of Toronto v. S.C., 2017 ONCJ 717. The children had been made crown wards without access. The father of the children subsequently flooded the court office with Form 14B motion forms without any merit, unwilling or unable to accept that the issues had been determined on a final basis by this court and that his recourse was to appeal the decisions to the Superior Court of Justice. The father’s last Form 14B sought an order that the court notify the public that he had finally won his case unopposed. The court wrote at paragraph 38: The father’s actions now amount to an abuse of the court process as he is misusing valuable court resources. He refuses to accept the court’s orders. The court has an obligation to all its users to control its process to prevent such abuse. See: R. v. Felderhof, 2003 ONCA 37346.

[35] The court ordered that the father could not file or send any documents to the court seeking permission to bring another motion for leave to bring a Status Review Application regarding his children until the expiration of the 6-month statutory time period set out in subsection 65.1 (7) of the Act. It further ordered that court staff should not accept any Status Review Application, motion forms (Form 14B), or notices of motion (Form 14) from the father or schedule any court appearances prior to the expiry of the statutory 6-month period. And, if the father served the society with any motion or Status Review Application in contravention of the order, the society did not have to respond, unless otherwise directed by the court.

[36] Lastly, as part of the court’s authority to control its own process, rule 2 of the Family Law Rules sets out that the primary purpose of the rules is to deal with cases justly.

[66] In N.E., the court used its authority to control its own process to order a party to remove offensive social media postings that were intended to harass and intimidate a child protection worker.

[67] The court’s authority to control its own process by removing a person who has already been named as a party to a child protection proceeding, albeit incorrectly, is discretionary. There may be situations (for example, the case is close to trial, the person has actively participated in the case, the person has expended money on counsel in the case), where the court exercises its discretion not to remove the incorrectly named party. Any request to remove the person as a party should be made on notice to that person.

[68] Here, it is appropriate for the court to use its authority to control its own process and remove the maternal grandfather as a party. He was improperly named as a party. As of the date of this hearing, he was not a parent as defined by the Act.

[69] It is not in the child’s best interests or consistent with the primary purpose of the legislation for the maternal grandfather to be a party. Maintaining him as a party runs the risk of delaying permanency planning for the child. It could unreasonably add to the time and expense for this case. It would give him the right to obtain sensitive and private information about the child and the parties. [8]

[70] Lastly, the maternal grandfather has shown no interest in participating in these proceedings. If he changes his mind and wishes to seek an access order while the child protection case is ongoing, he has the right to bring a separate application under subsection 104 (1) of the Act. If a custody order is granted under section 102 of the Act, as requested by the society and the father, the maternal grandfather has the right to bring an application for contact with the child pursuant to section 21 of the Children’s Law Reform Act.

[71] The court finds that it is just in the circumstances of this case, as defined by rule 2, to remove the maternal grandfather as a party.

Part Nine – Conclusion

[72] An order shall go on the following terms:

a) The maternal grandfather is removed as a party to this status review application.

b) The style of cause is to be amended accordingly.

[73] The court thanks counsel for their helpful submissions.

Released: July 6, 2023

Justice Stanley B. Sherr

[1] This practice is not absolute. For instance, if a putative father of a child is named as a party and DNA tests establish that he is not the child’s biological father, he will rarely be named as a party in a subsequent status review application.

[2] The court notes that paragraph 2 of subrule 7 (4) also creates party status in child protection cases. This will be reviewed below.

[3] Previous case law had set out that party status should be determined when the protection application or the status review application was issued and that party status could not be acquired during a proceeding by virtue of obtaining a temporary custody or access order. See: J.S. v S.M., 2022 ONSC 2535. In Kawartha-Haliburton Children's Aid Society v. B.S., 2011 ONSC 6211 (Ontario Divisional Court), the court found that once the society amended its protection application, it must identify and name as a party anyone who was a parent at that time. This would include caregivers who were not parents when the protection application was issued but who became parents by virtue of a temporary custody or access order after the application was issued and prior to the application being amended. It was an error not to name such persons as parties on the amended protection application.

[4] It also incorporates the definition of parent set out in sections 8, 9, 10 and 11 of the Children’s Law Reform Act dealing with assisted reproduction, pre-conception parentage agreements and surrogacy issues.

[5] See: T.E., 2023 ONCA 149, par. 50.

[6] See: J.S. v. S.M., 2022 ONSC 2535, supra, paragraphs 68-70 for a further discussion of these potential consequences.

[7] To the contrary see Children’s Aid Society of Toronto v. L.O. and M.O., 2003 ONCJ 64402.

[8] Although the court could find him in default on this protection application and determine that he is not entitled to any further notice, this finding would not extend to any subsequent status review application where these issues could arise.