This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
-(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.
-(3) A person who contravenes subsection 45(8) (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.
Court File and Parties
COURT FILE NO.: C-740-16 DATE: 2016-09-12 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid Society of Hamilton Applicant – and – J.O. Respondent
COUNSEL: Ely-Anna Hidalgo-Simpson, for the Applicant and as agent for the Children’s Lawyer, Robert J. Charko. Jorge Saenz, for the Respondent J.O.
J.C. Respondent M.C. and I.C. Maternal Grandparents
Susan Sullivan, for the Respondent J.C. James A. Brown, for the Maternal Grandparents
HEARD: September 9, 2016
BEFORE: The Honourable Mr. Justice A. Pazaratz
Endorsement
[1] This is a motion by the maternal grandparents for two headings of relief:
a. To be added as parties in relation to a child protection application currently before this court, relating to a ten year old male child D.C. and an eight year old female child E.C..
b. They also request access to both children, including alternate weekends and telephone contact.
[2] The context of this file is important:
a. The mother is J.O..
b. The father is J.C..
c. The parents were separated. They had a final order granting the mother custody with the father to have regular access including alternate weekends and significant time when school is not in session.
d. In April 2016 both children were removed from the mother’s care in Hamilton and placed with the father who resides in Barrie.
e. The children were removed after the female child disclosed sexual abuse by the mother’s boyfriend T.L.. The sexual abuse was prolonged and horrific. It is said to have occurred over the course of a full year. Not only has the boyfriend been charged with multiple offences, but other individuals have also been charged with sexually abusing this child. The mother’s boyfriend is said to have made the child available for other persons to sexually abuse her. The boyfriend is said to have videotaped these encounters. He has been charged with making and distributing child pornography. It is alleged that an advertisement was placed on Craigslist, in relation to sexual exploitation of E.C..
f. The police investigation has been detailed and is ongoing.
g. The mother has not been charged with anything. She currently resides with the maternal grandparents.
h. Pursuant to an existing order the mother’s access is in the discretion of the Catholic Children’s Aid Society of Hamilton (the Society). But all access to either child has been suspended, partly to avoid jeopardizing the ongoing police investigation.
i. In the meantime, the Society says both children are doing extremely well in the father’s care (although there are still strong indicators that both children have been emotionally traumatized by events which occurred while they were in the mother’s care.) There is no suggestion the Society will be proposing to remove either child from the care of the father, although Society supervision will likely be ongoing.
j. No final order has yet been made, and the matter returns to court for a Settlement Conference on October 31, 2016.
[3] The Society and the father oppose both requests by the maternal grandparents.
[4] The Children’s Lawyer, acting for both children, takes no position with respect to the request to be added as parties, and defers to the Society and the ongoing criminal investigation with respect to access.
[5] The mother is not opposed to either request by her parents. The mother did not file any materials, but her lawyer confirmed that the mother and the maternal grandparents support one another’s positions.
[6] Rule 7(5) of the Family Law Rules states that the court may order that any person who should be added as a party shall be added as a party.
[7] In determining whether to add a person as a party to a child protection proceeding, the court in Children's Aid Society of London and Middlesex v. S.H., [2002] O.J. No. 4491, 2002 CarswellOnt 4048 (S.C.J.), enunciated principles that should govern the exercise of discretion (at paras. 22 & 24):
(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 proceedings unduly,
(iii) whether the addition of the party is necessary to determine the issues, and
(iv) whether the additional party is capable of putting forward a plan that is in the best interests of the child.
[8] Not all four of those criteria need to be satisfied. Rule 7(5) uses the words “may order” which denote a permissiveness subject to judicial discretion.
[9] A fifth principle was set out in Children's Aid Society of London and Middlesex v. J.P., [2000] O.J. No. 745 (S.C.J.) and stated (at para. 24):
In addition to the foregoing list of principles, I must also consider whether the person seeking to be added as a party has a legal interest in the proceedings.
[10] The maternal grandparents submit:
a. They have always had meaningful and important involvement in both children’s lives.
b. Both children miss them.
c. In the long run it may be in the best interests of both children that they reside in the custody of the grandparents. At the very least they should be granted liberal access immediately.
d. They have adequate accommodation.
e. If necessary the mother will move out of their residence to allow the children to attend.
f. They are prepared to supervise access to the mother (their daughter).
g. They should be allowed party status so that they can advance their proposal and have it properly considered.
[11] The Society submits:
a. The maternal grandparents are closely allied with the mother. Their plan can be advanced by the mother.
b. The children are doing extremely well with the father and there is no expectation the Society will be proposing any removal from this biological parent’s care. In the circumstances, there is no need to consider the proposal of a non-parent, where the Society supports continued placement with a parent.
c. Since the scope of relief being sought by the Society is so limited, it is not necessary to add the maternal grandparents to participate in the determination of issues.
d. The maternal grandparents’ long-term claim for custody would create enormous upheaval for children who have already been traumatized. These children have been through so much, we need to exercise special care in promoting the positives and stability they currently enjoy.
e. The maternal grandparents have not demonstrated any insight or ability to protect. Even though the mother has not been charged in relation to the extensive sexual abuse said to have occurred within her home, the conditions of the home were horrendous and should have caused alarm for the grandparents – if they were having as much involvement in the children’s lives as they claim. When the children were removed from the mother’s home, the residence was filthy. There was drug paraphernalia in the home. There was a dead sparrow in the kitchen. Even without any knowledge of the sexual abuse, if the grandparents were in a close relationship with the mother and the children, they should have been aware that the children were living in deplorable circumstances.
f. The materials filed by the maternal grandparents focus on their own grievances and perceived entitlements, but provide very little information as to how any of their requests would be in the best interests of the children.
g. Even unsupervised access to the maternal grandparents is problematic at this time, given the fact that they are aligned with the mother; the mother appears to be minimizing the harm the children have been exposed to; and the scope of the ongoing police investigation has not yet been determined.
[12] The father supported the Society’s submissions, and added:
a. The maternal grandparents have not demonstrated that they have any legal interest in the outcome of this case.
b. The horrific nature of the abuse, and the evidence that both children have been emotionally traumatized, calls out for extreme sensitivity and caution.
c. There is no dispute that the father is doing an excellent job caring for the children. There is no suggestion the Society will ever be suggesting the children should be removed from the care of their biological father. The Child and Family Services Act requires that the least restrictive and least intrusive intervention be pursued – and in this case we’re already there. The Society has already agreed to the children living with their biological parent. No proposal which the grandparents might advance would be more consistent with the objectives of the legislation, than the plan already being proposed by the Society.
d. Adding parties will inevitably cause complication and delay in the process.
[13] I agree with the Society and the father:
a. The horrendous facts of this case require that the court take a sensitive approach, and carefully consider the maternal grandparents’ level of insight and capacity to help these children.
b. Both children have been through a lot. Both are doing well. The father appears to be doing an excellent job. There is no suggestion by the Society that the children should ever be removed from the care of their biological father.
c. In that context, the addition of the grandparents as parties is not necessary to the determination of any of the issues remaining in this case.
d. The mother and the maternal grandparents are closely aligned. The mother has counsel and can advance any proposal for involvement by the grandparents. Catholic Children's Aid Society of Toronto v. H. (D.), 2009 ONCJ 2 (OCJ).
e. The materials filed by the grandparents are vague and do not suggest that they are advancing a realistic plan that is in the best interests of the children. They do not have a legal interest in the proceeding.
f. There is already a great deal of conflict between the parents. Where the addition of a party is likely to increase a child’s exposure to adult conflict, the court should be cautious about adding the party. The court should examine the proposed party’s ability to cooperate with the Society and proceed in a child-focussed manner. Children's Aid Society of Toronto v. C.K., 2013 ONCJ 342 (OCJ).
g. The mother and the maternal grandparents have shown little insight with respect to the horrendous allegations of abuse, and the emotional turmoil the children have suffered. Just as access to the mother at this time might jeopardize the police investigation and the children’s emotional health – access by maternal grandparents who are allied with the mother’s position might similarly affect the investigation and the children in a negative way.
h. I am not satisfied that any access by the maternal grandparents is in the best interests of the children at this time.
[14] The motion brought by the maternal grandparents is dismissed in its entirety.
[15] If any parties wish to address any residual issues (including costs) they should arrange through the trial co-ordinator to have the matter returned to court to my attention.