WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows:

87 (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.

COURT FILE NO.: FC-21-24-00 DATE: 20220426

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Durham Children’s Aid Society Lana Pryce, for the Applicant Applicant

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J.S. Donna Shiplett, for the Respondent mother Respondent mother

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S.M. Respondent father Sandra Scovino, for the Respondent father Also present: Cassandra Baars, for C.C., a kin caregiver seeking party status

HEARD: March 15 and April 20, 2022 RELEASED: April 26, 2022

JUSTICE ALEX FINLAYSON

PART I: BACKGROUND

[1] This protection proceeding concerns an infant girl named A.M., age 1 ½ years old. Her parents struggle with drug addiction.

[2] A.M. was born in […] of 2020. She tested positive for cocaine at birth.

[3] The Durham Children’s Aid Society (the “Society”) did not then remove A.M. from her parents. The Society instead developed a safety plan whereby the parents would have family members available to care for A.M. if they were going to use drugs, so as not to do so in a caregiving role.

[4] That arrangement ceased being in place by the time the child was four months old. On January 28, 2021, the father reported to child protection worker Cathy Bugden that he and the mother had used drugs, although he claimed they did so while not in a caregiving role. The father explained that the parents had arranged for a babysitter so they could go out to use drugs. They then returned home and resumed parenting of A.M. and other children who were visiting. According Ms. Bugden’s affidavit of February 25, 2022, “[a]s parents did not reach out to their social network, cancelled appointments with both [Ms. Bugden] and the health nurse and had not attended screens, [the parents] agreed to have A.M. stay with [her maternal grandmother].”

[5] Between late January 2021 and April 1, 2021, A.M. was cared for by the maternal grandmother. The grandmother was assisted by the mother’s cousin, C.C. during part of the weeks.

[6] By April 1, 2021, C.C. assumed the child’s full-time care. That arrangement then continued for a number of months.

[7] In September of 2021, the Society launched this protection application. It did so after the mother voiced her objection to A.M. remaining with C.C.

[8] At the first appearance on September 14, 2021, this Court made a temporary without prejudice order placing the child with C.C. In reality, the Court’s order continued the informal placement that occurred months before that.

[9] For the next six months after September 14, 2021, the parents worked towards addressing their addiction, relationship conflict and other protection issues. In or around the early new year, the Society devised a plan for the child’s graduated return to the parents. At an attendance in court on January 28, 2022, I made an order implementing the first two phases the plan for the graduated return. I would not at that time order the child’s complete return to the parents as asked. I opted instead to continue to monitor the graduated return, but also indicated that motions could be brought.

PART II: NATURE OF THE MOTIONS BEFORE THE COURT

[10] There are now three motions before the Court: one by the Society and one by C.C., which were initially argued on March 15, 2022, and an additional 14B Motion dated April 14, 2022 filed while this decision was under reserve.

[11] The Society’s Amended Notice of Motion dated March 14, 2022 in part sought a temporary order for A.M.’s return to her parents subject to various terms and conditions of supervision. It also sought an order for specified access to C.C.

[12] The Society framed its motion for the child’s return as being pursuant to section 94(9) of the Child, Youth and Family Services Act, 2017 , to vary the Court’s temporary without prejudice Order of September 14, 2021. However, the Court’s order of September 14, 2021 placing the child with C.C. was made on a without prejudice basis only. The temporary care and custody motion was never brought back on with responding material from the parents for argument on its merits. The Society’s motion for the child’s return to her parents is properly framed as a request for an initial order under section 94(2) of the CYFSA, not a variation under section 94(9) of an earlier order made under section 94(2). In any event, the issue of the child’s return resolved on consent at the outset of argument on March 15, 2022 and so the import of this distinction is moot.

[13] What the Society and the parents were really prepared to do by March 15, 2022 though, was not only to complete A.M.’s graduated return to the parents, but also to finalize the finding and then disposition by way of a six-month supervision order. The Society and the parents have already signed a draft Statement of Agreed Facts. But they were unable to finalize it and ask the Court to order it, because C.C. would not sign it, and her status in this litigation remained unresolved.

[14] The parents told the Court that C.C. was blocking the reunification. But at least on March 15, 2022, she did not actually oppose the child’s return to her parents on a temporary basis, and she said she was not putting forward a competing plan for A.M.’s full time care either. Rather, C.C. was unhappy with the amount of time that the Society and the parents proposed that she now may spend with A.M. following her return to her parents.

[15] C.C. seeks two things in her Notice of Motion. First, she asks for an order that she be added as a party to this proceeding. Alternatively, if she is not made a party, then C.C. says she at least has participatory rights, and she asks the Court to expand those rights. Among other things in that alternative scenario, C.C. would seek leave under section 79(3) of the CYFSA to file an Answer and Plan of Care. She also wants to ensure she will be considered as a candidate to be the child’s caregiver again, if the return to the parents breaks down.

[16] Second, C.C. did not actually specify in her Notice of Motion the amount of time that she is seeking with the child. During submissions on March 15, 2022, counsel said that C.C. is seeking time each Sunday at 10:00 am until Monday at 7:00 pm, each Wednesday from 7:00 pm until Thursday at 7:00 pm, and one full weekend each month in addition.

[17] On March 15, 2022, the Society and the parents were initially aligned in opposition to C.C.’s request to be added as a party to this proceeding and to her alternative request for expanded participatory rights. Both counsel for the parents said that C.C. was not automatically entitled to party status, and the Court should not add her or expand her participatory rights. Alternatively, if C.C. has party status automatically, then that status should be taken away from her by the Court.

[18] The Society’s and the father’s positions on the question of C.C.’s party status have since changed.

[19] In regards to C.C.’s access, whether on a temporary basis, or in the six-month supervision order that may follow, the Society and the parents say that C.C. should only have access with A.M. each week from Wednesday at 10:00 AM until Thursday at 6:00 PM for two months, to help support the reunification. Thereafter they say the child should be with her during on the second weekend each month only, from Fridays at 10:00 AM to Sundays at 1:00 PM.

[20] The Court advised the parties that it was going to reserve its decision at the conclusion of argument on March 15, 2022. The Court set a return date of June 10, 2022 and indicated that it would specify the purpose of the next attendance when it released this decision, depending on the outcome of the issues that had been argued. But while this decision was under reserve, the Court reviewed three decisions that counsel had not averred to in argument on March 15, 2022. The Court was of the view that the decisions might have some bearing on the question of C.C.’s party status in this case. The Court wished to give the parties and C.C. an opportunity to make additional submissions about the cases. The Court scheduled an attendance on April 20, 2022 for the submissions. Because of some difficultly coordinating counsel’s schedules for the re-attendance, submissions did not start until 4 PM.

[21] Leading up to the April 20, 2022 re-attendance, unbeknownst to the Court the Society filed a 14B Motion dated April 14, 2022 asking that the June 10, 2022 return date be brought forward for a further motion. The Court was not initially advised of the existence of the 14B Motion at the outset of submissions on April 20, 2022. The fact of the new 14B Motion was only raised very late in the day when concluding the attendance for the further submissions. Orally, the Court was told that the parents had separated, and there had been a relapse. After some additional discussion, the Court learned that the parents had reconciled, and the mother is apparently going to a 35-day rehabilitation program. The Society told the Court that it was satisfied that the child was adequately protected and it was content to withdraw the 14B Motion. C.C. wanted the earlier attendance. The Court advised the parties that it would have the 14B Motion directed to its attention, that the Court would mark it as withdrawn but that C.C. may decide to take additional steps if she wished.

[22] In this decision, I am ruling on the party status and access motions argued on March 15, 2022 and supplemented by additional argument on April 20, 2022. But having now had the opportunity to review the contents of the 14B Motion (that was not before the Court on April 20, 2022), the Court will be scheduling an earlier Court date for a case conference.

PART III: ISSUES AND SUMMARY OF THIS DECISION

[23] C.C. was not named as a party on the protection application itself. Her status in the proceeding is something that the Court raised at the very first appearance in this case on September 14, 2021. The Society was not able at that time to provide clear guidance to the Court about its view of C.C.’s status in this case in light of the care she provided for A.M. for several months prior to the commencement of this proceeding. The Court directed the Society to consider the issue, and to be prepared to address it next time.

[24] At the second attendance on October 19, 2021, I was told that C.C. has participatory rights. It was clear to the Court though that C.C., who was in attendance, was confused and had little understanding of what that meant. Having been told that C.C. had participatory rights, the Court reviewed section 79(3) of the CYFSA with her . The Court asked C.C. to contact duty counsel. The Court also asked her to advise the Court how she intended to participate in this proceeding, after consulting with duty counsel.

[25] In advance of the next Court date in January, 2022, C.C. retained counsel. She then brought a motion asking to be added as a party to this proceeding and for access.

[26] There are three core issues raised on the motions before the Court.

[27] First, in regards to C.C.’s participation in the case, there are a number of questions to be answered:

(a) What is C.C.’s status in this proceeding?; (b) Is she a party?; (c) If C.C. is a party, can that status be taken away, to enable the Society and the parents to finalize the Statement of Agreed Facts without her?; (d) If she is not a party, should she be added as one? (e) Is she someone with participatory rights, and if so, should those rights be expanded; and/or (f) Does she lack status altogether?

[28] For the reasons that follow, I find that C.C. is not a statutory party. But I find that she should be added as a party to this proceeding under rule 7(5) of the Family Law Rules .

[29] In regards to the second core issue being C.C.’s access to A.M., there is some consensus that C.C. should have access, but the Society, the parents and C.C. cannot agree on how much. The Court must therefore decide what temporary access order is in A.M.’s best interests.

[30] I appreciate that the Society’s and the parents’ proposal for gradually decreasing access between C.C. and A.M. is in furtherance of the reunification plan. However, I am unable to find that is in A.M.’s best interests at this time. C.C. became an important person in the child’s life. She has also played a vitally important role in this child’s care that perhaps kept this child out of care. The reunification is still tentative.

[31] On the other hand, the amount of time that C.C. is seeking does not strike the right balance either. The Court intends to order something that borrows on elements of both plans.

[32] The third core issue is what should happen next in this litigation. I intend to order the parties to return before me on April 29, 2022 at 9:00 AM for a 30 minute case conference. The Court needs to be given much more information about what has transpired than what has been supplied in the 14B Motion dated April 14, 2022 and via the oral information the Court heard late in the day on April 20, 2022. I have not canvassed this date with counsel and so if one of the lawyers or the parties is not available then I may be contacted through the trial coordinator’s office to re-arrange an alternate time, provided it is reasonably proximate. If at the conclusion of the upcoming attendance, either of the parties feel that a motion is necessary, then that may also be raised and if appropriate, I will schedule it.

PART IV: ADDITIONAL BACKGROUND AND THE CONDUCT OF THE PRIOR PROCEEDINGS

[33] After the placement with the grandmother and C.C. starting in late January, 2021, the parents’ work to address the protection concerns was not without challenges. The parents continued to struggle. For example, in about March of 2021, the mother agreed to attend an inpatient rehabilitation program followed by outpatient programming. But then the mother did not go, telling the Society she would conquer her addiction on her own. According to Ms. Bugden’s affidavit of September 3, 2021, the mother then had no contact with her between April and August 10, 2021.

[34] The father, by contrast, went to in-patient treatment arranged and paid for by the Society, and then participated in aftercare. But he relapsed thereafter.

[35] Despite the mother’s statement that she would address her addiction on her own, and despite the father’s participation in treatment, both parents continued to use drugs. For example, in July 2021, the father disclosed to C.C. that he used cocaine. Both parents disclosed to Ms. Bugden that they used on or about August 4, 2021.

[36] Ms. Bugden says that in early to mid-August, 2021, the mother revoked her consent to A.M. remaining with C.C. That is what triggered this proceeding. In the Society’s motion material filed for the first appearance on September 14, 2021, Ms. Bugden described the protection concerns as “the failure to mitigate the chronic protection concerns relating to ongoing adult verbal and physical conflict in the home, substance use, poor condition and cleanliness of the home”. Ms. Bugden also expressed concern about the mother’s revocation of her consent for the child to remain with C.C. until the parents were able to resume full time care.

[37] When I formally placed the child in C.C.’s care on a temporary without prejudice basis at the first appearance in this case, I also ordered various terms and conditions. Those terms and conditions included that the parents were to pursue drug treatment and counselling.

[38] By the third appearance on January 28, 2022, the Society provided a detailed written and oral update. The Society and the parents were ready to progress to a graduated return to the parents. On consent, I made an order for the child to be in the care of her parents, increasing over two phases. This ultimately culminated in their having A.M. for three overnights during the mid-weeks, from Mondays at 4:30 PM until Thursdays at 4:30 PM, and again on Saturdays from 10:00 AM to Sundays at 10:00 AM.

[39] The Society would have had the Court order a third phase for the child’s complete return to the parents that day. But C.C. did not agree to the timelines under which parenting time would increase from one phase to the next, she would not agree to an eventual return to the parents that day and the Court separately was not prepared to order it. It was however discussed that if the graduated schedule continued to go well, the matter might very well resolve. I endorsed that the parties could submit a Statement of Agreed Facts for my review in advance of the next court date by way of 14B Motion if that were to come to pass. However, as there were also indications that C.C. might not be in agreement with a complete return, it was discussed that a return might have to be addressed on temporary basis. I granted leave for motions. This included provision for C.C. to bring a motion respecting her status in this proceeding, which still remained unresolved.

[40] As set out earlier, the issue of the child’s return to the parents on a temporary basis did resolve on consent at the outset of argument on March 15, 2022. I gave brief written reasons in the Endorsement setting out the factual and legal basis of the order I made that day. Elaborating on those reasons, the factual basis for the return also included:

(a) The father admitted he has a long history of drug addiction and he recognized that maintaining sobriety will always be a challenge for him; (b) Since September 14, 2021, the parents had worked cooperatively with the Society. Ms. Bugden said they were honest about their substance misuse and had shown insight; (c) Although earlier in 2021, the mother would not go to an in-patient treatment program, the mother later completed several other programs through the Renascent Center. The programs she took were acceptable to the Society; (d) The father is now on a wait list for more programming through Pinewood and CAMH. Meanwhile, he is taking suboxone to manage his substance use; (e) The mother is taking medication for anxiety and depression; (f) The parents started couples counselling. The Society is paying for a number of those sessions; (g) Between mid-January 2022 and late February 2022, the parents took the Nobody’s Perfect Parenting Program; (h) The mother obtained full-time employment; (i) While the father is in receipt of ODSP, he does some work from home and also helps a friend doing construction work; and (j) The parents regularly attended for supervised parenting time. After the graduated schedule was put in place, the Society observed the child in the home. Ms. Bugden did not report any concerns arising out of those observations.

[41] In ordering the return to the parents on a temporary basis on March 15, 2022, I specifically relied on this evidence, tendered by the Society, and counsel’s submissions, as to the parents’ progress and good work. At the same time, the protection concerns were not completely abated. The Society and the parents acknowledged this.

[42] There is still the need for the ongoing involvement of the Society to monitor the parents and this child. For example, while the parents had not used drugs in a number of months and have better supports in place, there is still some relatively recent substance use. The couples counselling put in place only just started in December of 2021. The Society committed to funding only some sessions. The father was only on wait lists for more programming about his substance use. Ms. Bugden intended to continue to work with the parents. Since the initial argument on March 15, 2022, there are now the new but related concerns raised in the 14B Motion.

[43] The ongoing need for the Society to work with and to support this family is clear. This is also more context in which C.C.’s continuing role with this family, and the question of what her status in this litigation should be, was argued.

PART V: ANALYSIS RESPECTING C.C.’s STATUS IN THIS PROCEEDING

A. The Options

[44] The legislation and the rules contain an overall scheme that governs who and how certain persons may participate in a child protection proceeding. To understand the parameters of any one provision, it is necessary to look at the structure of the statute and the party rule of the Family Law Rules together. The legislation and the rules should be interpreted harmoniously with one another to give an appropriate meaning to any particular provision. Any particular rule should not be interpreted in a manner as to override a statutory provision.

[45] In broad strokes, there are five kinds of status that could theoretically pertain to C.C.:

(a) a statutory party pursuant to section 79(1) of the CYFSA ; (b) a party under rule 7(4) of the Family Law Rules ; (c) a person who should be added as a party pursuant to rule 7(5); (d) a person with participatory rights under section 79(3) of the CYFSA , for whom leave may or may not be granted to participate further in the proceeding beyond the ways set out in the section; and/or (e) a person without status to participate in this proceeding, at all.

[46] In the body of this decision, I am not repeating verbatim each of the statutory provisions or rules that I cite. However, their precise wording is important to their proper interpretation and ultimately to the outcome of the motion. As such, I will set the wording out in full in Schedule “A” to this decision.

B. C.C. Is Not A Statutory Party

[47] Section 79(1) sets out who are the statutory parties to this proceeding. According to the section, an applicant is a party: see section 79(1)(1.). The Society having jurisdiction in the matter is also a party: see section 79(1)(2.). The Society is usually also the applicant so those subsections may overlap, but not always. [1] Section 79(1)(4.) addresses who are the parties in cases involving First Nations, Inuk or Metis children. This subsection does not apply here as the child is not FNIM. The remaining subsection is section 79(1)(3.); that subsection makes a “parent” a statutory party.

[48] A “parent” is defined in section 2(2) of the CYFSA. A “parent” is also defined in section 74 for the purposes of Part V of the legislation. Part V governs the conduct of protection proceedings. Both sections define as a “parent” a person who has lawful custody of the child. But section 74 also contains an expanded definition of “parent”. It has an expanded eight-paragraph list of persons who qualify as parents. Among others, it includes those who qualify as parents under the Children’s Law Reform Act, persons who have been found to be a parent by a court, those who under a written agreement or a court order are required to provide for the child, and those who have custody of a child or a right of access to a child. Section 74 explicitly excludes foster parents from the definition of a “parent”.

[49] Children’s Aid Society of the Districts of Sudbury and Manitoulin v. D.B., 2021 ONCJ 639 is somewhat analogous to this case factually. Initially in that case, the mother placed her children with the maternal grandparents under a “Temporary Kinship Agreement”. However, the children were a considerable burden on those grandparents and the two older children began spending more time with the paternal grandmother. The mother did not like this arrangement and gave notice that she was revoking the “Temporary Kindship Agreement”. She said she wanted the children returned to her. The Society commenced a protection application.

[50] In the protection proceeding that followed, the Society obtained a temporary without prejudice order placing those two older children in the care and custody of the paternal grandmother. The temporary care and custody hearing was not then scheduled or heard for quite some time. The without prejudice order remained operative for a number of months. See ¶ 10-12.

[51] The Court later heard a motion to determine the paternal grandmother’s status in the proceeding. The Court held that the Society was correct not to name the grandmother as a party to the proceeding when it commenced the protection application, as the grandmother was not yet a “parent” and thus did not have party status under section 79. However, the Court was of the view that once the Society obtained the order placing the children in her temporary care and custody, the grandmother became a “parent”. It added her as a party on that basis. The Court held that the grandmother acquired the status of a “parent” by operation of section 74(1)(5.) because she became someone with lawful custody once that temporary without prejudice order was made. Likewise, she also qualified as a “parent” under section 74(1)(7.).

[52] The Court rejected the argument that the determination of who is a “parent” and therefore a statutory party must be made at the outset of the proceeding. See ¶ 16-35. [2] The Court instead held that a person may become, or cease being a “parent” over the lifespan of the case, including as a consequence of temporary orders made within the very protection proceeding in which party status must be determined in the first place.

[53] According to ratio of Children’s Aid Society of the Districts of Sudbury and Manitoulin v. D.B. , C.C. might have qualified as a “parent” and thus a statutory party at some point during this proceeding, because on September 14, 2021 the Court placed the child in her care and custody in this proceeding on a temporary without prejudice basis. However, on March 15, 2022, the Court returned A.M. to her parents on consent and so as of that date, she no longer had the child in her temporary care and custody. But the parties and C.C. also asked the Court to make an access order on March 15, 2022. I ordered access between C.C. and the child in the discretion of the Society pending the release of this decision. Thus even still now, C.C. might still qualify as a parent and therefore a statutory party pursuant to sections section 74(1)(7.) and 79(1) as the holder of an access order.

[54] When this motion was initially before the Court on March 15, 2022, no one made arguments about the overall structure of the party and participation provisions of the statute as a whole. Neither the Society, the parents nor C.C. initially argued that C.C. qualified as a parent and therefore a statutory party under sections 74(1) and 79(1) either. Following my review of Children’s Aid Society of the Districts of Sudbury and Manitoulin v. D.B. and the decisions referred to in footnote 2 while this decision was under reserve, I decided to invite further submissions.

[55] It is not disputed that these cases are not binding on this Court. That is not because this Court is a superior court whereas the Ontario Court of Justice is provincial court. In certain court sites in this province where family courts are not unified, the Ontario Court of Justice is the court of first instance for child protection and the Superior Court sits on appeal in child protection cases. But in Durham (and other unified sites), where there is only a Family Court of the Superior Court of Justice and the Ontario Court of Justice does not hear family law cases at all, this Court is the court of first instance for child protection. As such, both the Ontario Court of Justice (sitting in parts of the province where it has family law jurisdiction), and the Family Court of the Superior Court of Justice (sitting elsewhere in Ontario), are courts of coordinate jurisdiction for child protection. Child protection decisions from both courts are first level decisions. Their decisions are horizontal precedent. They are equally weighty in terms of their precedential value.

[56] This Court should not just lightly disregard a child protection decision of the Ontario Court of Justice. As Strathy J. (as he then was) said at ¶ 43 of R. v. Scarlett, 2013 ONSC 562 , the decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them. Reasons to depart might include that the validity of the judgment has been affected by subsequent decisions, the judge overlooked some binding law or a relevant statute, or that the decision was otherwise made without full consideration. The judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.

[57] But adherence to horizontal precedent is not necessarily as rigid as the plainly wrong language might suggest; there may be a somewhat more flexible approach. In deciding whether to follow or depart from horizontal precedent, the Court should weigh the advantages and disadvantages of following or departing. The Court should consider the impact not only on the parties but also on future litigants. The Court should consider the integrity and administration of the justice system. See R. v. Chan, 2019 ONSC 783 ¶ 43 .

[58] Applying these considerations, I agree with Ms. Shiplett that Children’s Aid Society of the Districts of Sudbury and Manitoulin v. D.B. and the cases referred to in footnote 2 are persuasive authority, but not binding authority. I must decide whether I will follow them based on the principles articulated in R. v. Scarlett and R. v. Chan .

[59] In certain respects on April 20, 2022, C.C. repeated the arguments previously made on March 15, 2022 respecting rule 7(4) of the Family Law rules and her request for expanded participatory status under section 79(3). However, relying on these additional cases, C.C.’s counsel also argued that C.C. would now qualify as a parent and therefore a statutory party. If that is so, her previous arguments become moot.

[60] The Society changed its position on April 20, 2022 based on these additional authorities. Counsel now submitted that it appears that one can become a party as a result of a temporary order made within a child protection case. At the same time, counsel also questioned whether the particular interpretation in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. D.B. is consistent with the intention of the legislation.

[61] The father conceded that C.C. should be added as a party, although his counsel characterized the concession as being based on a bit of a technicality. Counsel pointed out that while the Court did make an order for the child’s return to the parents on March 15, 2022, the Court also made an order for access between C.C. and A.M. in the Society’s discretion pending the release of this decision. She submitted that because of that access order, C.C. qualifies as a parent and therefore a statutory party.

[62] The mother did not change her position and continued to maintain that C.C. should not be added. The mother’s counsel submitted that the provisions of the statute and the rules are confusing. She questioned whether there was a distinction to be drawn from the fact that the person acquiring statutory party status in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. D.B. was a grandparent whereas in this case C.C. does not even qualify as a relative (see the statutory definition in section 2(1) of the CYFSA ). She also submitted that the interpretation in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. D.B. may have unintended consequences, and make the conduct of child protection litigation unwieldy. This Court shares the latter concern.

[63] With the greatest of respect to the Courts in the additional decisions that I supplied to counsel for additional submissions, I find there is good reason to depart from the interpretation of the statute and the party rule taken therein. I cannot agree that a temporary order made in a protection proceeding should on its own confer upon a person parental and therefore statutory party status. I say this for several reasons.

[64] 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 section 74. 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. .

[65] The question of who is a statutory party is something into which thought must be put at the outset of a protection application, and then again at the outset of a status review proceeding. It is important to ensure, at the outset of a child protection proceeding, that those who ought to be added are added. The failure to do so can undermine the integrity of an order made down the line. It is equally important to ensure that those who ought not be added are not added, because of the problems that may ensue when non-parties are added in error. The time to turn one’s mind to this is when the proceeding begins.

[66] The exercise of drafting and then causing an initial protection application and later a status review application to be issued necessarily entails identifying who must be named as a respondent in the case, and then serving that person. That exercise requires one to turn to section 79, which in turn directs one to the statutory definitions of a “parent”. Those definitions are worded contemporaneously and retrospectively. Both the definitions of parent in section 2(2) and 74 refer to circumstances then existing, or determinations previously made by a court, agreements previously made, and/or de facto arrangements already in place. The provisions requires one to look at the state of affairs at the time that the protection application and later the status review application, gets created and then issued.

[67] I do not read other provisions of the legislation as requiring all those with whom a child is then placed on a temporary basis within the protection proceeding itself to be added as a party. For example, at a temporary care and custody hearing where decisions about temporary placements are made, section 94(2)(c) is the subsection that allows for the placement of a child with someone other than the person who had charge of the child immediately before the intervention under Part V of the CYFSA. Section 94(2)(c) requires that other person’s consent for the order to be made; it does not say that they must be made a party for the terms of such an order to be binding on them. Normally this can be accomplished by obtaining a written caregiver’s consent. To the extent that it is necessary, a proposed temporary caregiver may be a party for the purposes of the motion (see rule 7(2)), but I fail to see why they must then be added more broadly if a temporary placement order is made. There are many examples in the case law of temporary placements with others like family members, while the parents work on addressing the protection issues that form the subject matter of the proceeding. In many decisions, the temporary caregivers are not automatic parties, let alone even parties added in the Court’s discretion.

[68] Routinely adding others in this category as parties to a protection application or a status review, early on in the process, before findings have even been made in the case of a protection application, could run contrary to the paramount purpose of the legislation in section 1(1), or the other purposes in section 1(2). The purposes in section 1(2) include supporting the autonomy and integrity of the family unit, and embarking upon the least disruptive course of action that is available and appropriate in a case. It is easy to fathom how expanding the scope of the litigation by adding other parties, who then have the right to claim orders, make submissions, receive disclosure, go to questioning, bring motions, consent or oppose settlements, and who have appeal rights, could interfere with the very purposes of the legislation that the Court is supposed to be promoting.

[69] There are tight timelines in the legislation that are supposed to be adhered to. Adding others to the litigation unnecessarily risks delaying the proceeding. The Court has a duty under rule 2 to manage its cases. The primary objective of the rules maybe frustrated if persons are routinely added as a parties and cases become more involved and complex than necessary.

[70] There needs to be a measure of certainty in a child protection case. If the statutory party provisions are not interpreted as requiring the determination to be made at the outset of the proceeding, how are Society, litigants and the Court to know when things change sufficiently such that someone might now cross the threshold and suddenly be entitled to party status. What if someone qualifies as a parent and therefore a party on the cusp of a trial? Must they now be served and must there be more interim steps in a case, thereby jeopardizing the trial and risking delay? Or what if, like in this case, a child is placed with someone on a temporary basis and her party status is not immediately addressed. What happens if the child is later returned to the parents? Can the caregiver rely on the previous temporary care and custody order to argue that she had party status and ought to have been added earlier in the proceeding?

[71] Temporary placements and access orders change during the interlocutory stages of a protection proceeding. This case provides a good example of that. In this case, the child is no longer in C.C.’s temporary care and custody because at the outset of the motion on March 15, 2022, the parties consented to the child’s return to her parents and C.C. did not oppose. Leading up to the temporary order for the return, C.C.’s primary care of the child also started to reduce as of January 28, 2022, when the Court ordered the reunification plan to start, also not opposed by C.C. But sometimes in other cases, there is no temporary return to a parent or a preintervention caregiver. Instead, there may be changes in temporary placements from one caregiver to another, for example on account of placement breakdowns, or because the first temporary caregiver is no longer able or willing to act.

[72] If the status as a “parent” may change over the life of a protection application as temporary placements change, there could end up being a situation where there are multiple “parents”, including even persons who are no longer providing temporary care.

[73] In that scenario of changing caregivers who would be entitled to party status based on becoming a statutory parent/party, it is not at all clear in the case law that a parent/ statutory party may be removed as a party. In fact, there is a debate in the case law about whether this is so, and the weight of the authority suggests an absence of jurisdiction to remove a statutory party.

[74] In Children’s Aid Society of Toronto v. L.O. , the Court found there was some limited jurisdiction to remove a parent as a party to the proceeding. By contrast, the Courts in Windsor-Essex Children’s Aid Society v. R.L., 2012 ONCJ 325 and in Children’s Aid Society v. S.B. and C.G, 2018 ONSC 5301 disagreed . And even if there is some limited jurisdiction to remove a parent as a party, the Court in Children’s Aid Society of Toronto v. L.O. still said that should only occur in the “rarest and clearest of circumstances” on evidence that is both “compelling as well as corroborated by reliable sources” or “highly persuasive”. If changing circumstances, like a temporary placement order within the protection proceeding can make someone a party on a relatively low threshold, should it really be that much more difficult to remove them if circumstances change again?

[75] Nevertheless, assuming that removing a statutory party is within the power of the Court, then how would that power be exercised? What about in a case like this one before me, where the caregiver is no longer providing temporary care but the reunification process has only recently begun and is being monitored for success; should the previous caregiver (C.C.) be removed now? Or would her status as a “parent” remain for a while depending on the progress of the reunification? At what point should she no longer be a party? In my view, these legal complexities all militate against the interpretation of the legislation that would allow someone who acquires a temporary order in a proceeding to be elevated to the status of a “parent” by virtue of that order alone.

[76] I agree with Ms. Scovino’s submission that the parties and the Court must be constantly reassessing the circumstances during the lifespan of a child protection case. For example, it would be appropriate for there to be a reassessment if a parent emerged who was not previously identified or located. He or she should be added. But that still requires an assessment of whether that person qualified as a parent and therefore a statutory party in the first place. Respectfully, the obligation to continually assess or reassess does not mean reassessing one’s status in the litigation as a statutory party that the person never had it in the first place. Others who perhaps should be added as a party based on subsequent developments can still be candidates using the discretion in the rules.

[77] I agree with Ms. Shiplett, that the conduct of a child protection proceeding may become unwieldy. I also agree with Ms. Scovino that in interpreting the statutory provisions and the rules, great care must be taken not to pit the parents against kin or kith caregivers who come forward to help families within a child protection case. These arguments militate against adding a person as a statutory party based on temporary orders made within the protection proceeding itself.

[78] And finally, rule 7 already makes provision for the Court to add a person as a party, and perhaps even to remove a non-parent person previously added as a party in its discretion, if circumstances change during a case. This will be discussed further below. As I said at the outset of this section of this decision, the rules should be interpreted in a manner that is complimentary to the statute, not in a manner that renders any particular statutory provision redundant. Using the rules to add a person as a party, or even to remove a non-parent but who has been added previously, maintains discretion in the Court where discretion is appropriate and it does not encroach onto the domain of the automatic and less flexible statutory party provisions. Maintaining discretion to add others is more consistent with the purposes of the legislation and the objectives of the Family Law Rules . The Court can set the parameters if someone other than a parent/a statutory party seeks to be added. The Court can maintain control over its proceeding to ensure that the case is not delayed and to ensure the case is well managed. The Court can ensure fairness to all those before it. The Court is able to exercise this important gatekeeping function judiciously. That is essential to the conduct of child protection proceedings.

C. There Is Insufficient Evidence That C.C. Had “Care and Control” of A.M., and If She Did Have It, She No Longer Does

[79] I turn to Rule 7 of the Family Law Rules . Rule 7(1) says that the parties to a case are a person who makes a claim in a case and a person against whom a claim is made. Rule 7(3) says that someone starting a case must name him or herself as the applicant, the person against whom the claim is made as a respondent, and that every other person who should be added as a party to enable the Court to decide all the issues in the case should be added. Rule 7(4) states that “every parent or other person who has care and control of the child”, but not a foster parent, shall be named as a party in a child protection proceeding unless the Court orders otherwise. The wording within this rule contemplates that both parents, but also others may have “care and control”. Unlike the “parent” and/or the statutory party provision, rule 7(4) is not absolute at least as it pertains to others who are not statutory parents and thus statutory parties. [3] The rule maintains discretion in the Court to “order otherwise”.

[80] C.C. relied heavily on rule 7(4) during submissions on March 15, 2022. Her counsel argued that C.C. is a party because of C.C.’s involvement in caring for this child.

[81] When this motion was first argued on March 15, 2022, counsel for the father also conceded that C.C. would qualify as a party under rule 7(4) . But she then went on to argue that C.C. would still have to be added by Order of the Court. In other words, despite the use of the word “shall” in the rule, counsel took the position that rule 7(4) requires an order, it is not automatic. Alternatively, she nevertheless argued that the Court can and should remove C.C. in this case using its discretion in the rule. That was before the changed position on April 20, 2022 that C.C. would now qualify as a statutory party.

[82] In Children’s Aid Society of the Districts of Sudbury and Manitoulin v. E.L. , 2020 ONCJ 677 the same Court that decided Children’s Aid Society of the Districts of Sudbury and Manitoulin v. D.B. found that the temporary care and custody order made was also sufficient to give the grandparents “care and control” of the child within the meaning of rule 7(4) and therefore party status on that basis.

[83] But in at least two other decisions, Justice Sherr has written about the interpretation of rule 7(4). In Children’s Aid Society of Toronto v. K. (C.), 2013 ONCJ 342 , the paternal grandparents, who lived with the father and the children, sought party status in a protection proceeding on the basis that they had “care and control” of the children within the meaning of rule 7(4) . But at ¶ 33, Sherr J. disagreed. He held that they had shared in the care of the children, but did not have “control” over them.

[84] By contrast, in Children’s Aid Society of Toronto v. M. (T.), 2010 ONCJ 701 , Sherr J. found that maternal grandparents had “care and control” of a child because they had not only cared for the child for a three-year period before hand, but also exercised actions of “control”. Although there was no order in place during that period, the grandparents had assumed a parental role, provided for the child and made decisions about her. See ¶ 8.

[85] Now I do note that in the first case before Sherr J. cited above where he found the grandparents did not have control, once that proceeding began, the children were placed with father subject to supervision orders, not the grandparents. In the second case, where Sherr J. found that the grandparents did have control, the children were placed with them once the proceeding got underway. And in this case before me, at least prior to March 15, 2022, I placed A.M. in C.C.’s care and custody on a temporary without prejudice basis. But for many of the same reasons expressed earlier when discussing the statutory definition of a “parent”, I would not find that a temporary order made in a protection proceeding should on its own create the situation of “care and control” to trigger party status for a non-parent under rule 7(4) either. Just like the interpretation I have taken respecting who is a “parent” and thus a statutory party, I read Sherr J.’s decisions to add someone as a party (or not) under rule 7(4) as requiring a look at the circumstances at the time of the protection application (or the status review application). The temporary placement orders that Sherr J. made flowed from those circumstances; it was not the temporary placement orders themselves that conferred the party status under the rule.

[86] In this case, I accept that C.C. might have qualified as a party under rule 7(4) at the outset of this proceeding as a result of the fact that the child was placed in her care informally for several months prior to its commencement. She clearly provided care. But despite counsel for the father’s concession that the rule applies, I disagree that rule 7(4) applies when the record before me is looked at carefully. The evidentiary record contains gaps about the “control” aspect of the test. The affidavit evidence focused almost exclusively on the amount of time that C.C. had the child in her care, but contained little to no information about “control”.

[87] If I am mistaken in interpretation of rule 7(4) and/or my findings about the evidentiary record as to the absence of evidence about “control”, C.C. no longer has “care and control” as a result of the Court’s subsequent order of March 15, 2022 for the return of the child to her parents in any event. As such I would not now add her on the basis of rule 7(4) and circumstances that no longer exist. I find there is discretion to do so given the include of the words “unless the court orders otherwise” in rule 7(4).

[88] Given my conclusions about the applicability of rule 7(4) in this case, I need not decide further whether the rule requires someone having “care and control” to be added as a party automatically, or whether the Court must make an order to confirm this, as counsel for the father argued on March 15, 2022.

D. The Test to Add A Party Under Rule 7(5) (or For Leave for Expanded Participatory Rights Under Section 79(3))

[89] That leaves rule 7(3), rule 7(5) on which C.C. also relies, and section 79(3), on which her alternative argument for leave for expanded participatory rights depends.

[90] To repeat, rule 7(3)(b)(ii) requires a person necessary to enable the court to decide all issues in the case is to be added as a respondent. Rule 7(5) authorizes the Court to order that any person who should be added as a party be added, and the Court may give directions for service on that person.

[91] Rule 7(5) has a few uses. It may be used harmoniously with the statute or other rules, to order the addition of a person as a party, like a statutory party, or a person with “care and control” under rule 7(4) , who ought to have been added in the first place, but who was left out in error. But a test under rule 7(5) has also developed in the case law, that empowers the Court to add others not specifically provided for in the legislation, yet who should be added as needed to decide the case. The test developed for that under rule 7(5) is a discretionary one.

[92] In contrast, section 79(3) provides that a person, even a foster parent, who has cared for the child continuously during the six months immediately before the hearing, is entitled to notice, to be present, to be represented and to make submissions. But those rights are less than those of a party and the section prohibits their further participation without leave of the Court.

[93] The discretionary test to add a party that has been developed in the case law was summarized and expanded upon by the Ontario Court of Appeal in A. M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 705 at ¶ 22-24; see also Children’s Aid Society of London and Middlesex v. H.(S.) . It is not just rule 7(5) that calls for the exercise of discretion; rule 7(4) and section 79(3) do so too; and discretion does not mean that the Court may just do what it wants; it must be exercised judiciously.

[94] I find the factors in A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 705 are also a useful guide as to the exercise of discretion about whether to grant leave to expand participatory rights and to the exercise of discretion when it comes to “ordering otherwise” under rule 7(4) , in addition to adding a party under rule 7(5) .

[95] There are five criteria in the test summarized in A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 705 . The five criteria, not all of which must necessarily be engaged for the test to be met, are:

(a) whether granting the relief is in the best interests of the child; (b) whether the proceeding will be delayed or prolonged; (c) whether granting the relief is necessary to determine the issues; (d) whether the person is capable of putting forward a plan in the child’s best interests; and (e) whether the person has a legal interest in the proceeding, in that an order can be made in favour or against her.

[96] In Catholic Children’s Aid Society of Toronto v. S. (R.D.) , Czutrin J. identified other factors that are a useful guide to the exercise of discretion. [4] While he did so when considering whether to expand the participatory rights of a foster parent , the factors Czutrin J. identified are also useful in other contexts, like the one that now confronts this Court. They include a consideration of the age of the child, how the timelines in the legislation will be impacted, the stage of the case, particularly whether or not a finding has already been made, whether the caregiver will be called to testify and if so whether her evidence will be challenged, and whether the caregiver might clarify other matters relevant to the best interests of the child.

[97] Finally, when the Court applies the discretionary test, the ability of an existing party to present a plan supportive of the non-party’s position will be a significant consideration in deciding to add the non-party or not. That a non-party may have relevant evidence in a case does not elevate them from a witness to party status. And it will not be necessary for the Court to determine at this stage whether the proposed plan of the non-party will be successful; the question is whether their plan merits consideration, despite the delay in bringing it. See Children’s Aid Society of Toronto v. C.K., 2013 ONCJ 342 ; see also Children’s Aid Society of Toronto v. M. E., 2021 ONCJ 412 .

E. Why C.C. Will Be Given Party Status Under Rule 7(5)

[98] The Society and the parents were originally opposed on March 15, 2022 to the Court adding C.C. under rule 7(5) for a number of reasons. They said that adding C.C. as a party to this proceeding (or expanding her participatory rights for that matter) will cause delay. Related to this, there was also an argument that adding C.C. may trigger some conflict.

[99] The Society and the parents pointed to the fact that C.C. refused to sign the draft Statement of Agreed Facts that would have allowed the findings to be made and this case to resolve by way of a supervision order at this time. Again, the parents said that C.C. is actively blocking the reunification plan. The father said that C.C. has berated him in the presence of A.M. Both parents said that C.C. has told them that she wants to keep A.M. and/or adopt her.

[100] C.C. admitted that her relationship with the father is strained. She said it deteriorated in August of 2021, when he relapsed. She is worried that the father will not support her relationship with A.M.

[101] In regards to this particular delay and conflict based argument, I observe that the Society and the parents are not themselves ready to resolve this matter by way of a Statement of Agreed Facts at this time.

[102] The Statement of Agreed Facts that the Society has drafted and circulated is incapable of being ordered in its current form. Statements of Agreed Facts should have enough information such that they set out the basis for the protection finding and the disposition. They also aid the Court in addressing subsequent proceedings properly. When it comes time for the Status Review, the Court must have a proper understanding as to the basis of the resolution of the prior proceeding, to assess whether the child continues to be in need of protection.

[103] The Statement of Agreed Facts that the Society and the parents have signed is deficient. In the section of the document that is supposed to set out the Society’s prior involvement, the reader is directed to refer to the Protection Application, and the parents’ Answers and Plans of Care. General cross-references in a Statement of Agreed Facts to the pleadings are insufficient. They provide little guidance as to what the agreed upon facts are, and to those which are not agreed to.

[104] In the next section of the document that refers to the reasons why the child was brought to a place of safety, the Statement of Agreed Facts says N/A. Regardless of whether this case involved a removal or not, there is still no background factual information anywhere in the document as to what happened. Those background facts should be contained somewhere for the Court’s and the parties’ future use in the Status Review.

[105] There are also no facts setting out the basis of the protection finding. And paragraph 4.1, which is supposed to recite the important developments relating to the child’s best interests since the date of the application, is a mere one sentence long.

[106] Even if C.C. had been prepared to sign the Statement of Agreed Facts as drafted and/or did not wish to oppose it, the Court would not have been prepared to grant a final supervision order based on this document. A new document will have to be generated.

[107] I am also not prepared to conclude yet that C.C. is actually going to block the reunification. Despite what the parents say, C.C. did not oppose the child’s return on a temporary basis. To the Court on this motion, C.C. focused her submissions on her ongoing access with the child. She has twice demonstrated her support for reunification, first by agreeing to parts of the reunification schedule on January 28, 2022, and then by not opposing the Society’s motion for a temporary order for the child’s return to the parents on March 15, 2022. Any reluctance on C.C.’s part right now may stem from the fact that she is cautious about the parents, in light of the history.

[108] And, the child’s full return to the parents was just implemented on March 15, 2022. It needs to be tested. There is now the additional 14B Motion with new developments that causes the Court some concern.

[109] It was separately argued on March 15, 2022 that C.C. did not need to be added as a party or have her participatory rights expanded since she is not putting forward a competing plan for A.M.’s care. Indeed, while C.C. wants to have an Answer and Plan of Care before the Court, insofar as A.M.’s residential arrangements are concerned, that aspect of her pleading and plan would not be because she is planning for this now, but rather because she is worried that if the placement breaks down, she may not be considered as a caregiver for this child in the future. She also expressed a concern that because the parents now reside in Scarborough, the Status Review proceeding may proceed in a different court in Toronto instead of Durham, a different agency may bring the proceeding, and if there is a breakdown those handing the Status Review may not consider her as a caregiver, or even know about her existence.

[110] Before the Society changed its position on April 20, 2022, I would have been prepared to agree with the Society, that C.C. did not really need to file a contingent Plan of Care for this. I also would not have found C.C.’s concern to be likely. There is very little chance that C.C. would not be aware if the placement breaks down, particularly since she will be having some access with this child. Additionally, during submissions on March 15, 2022, the Society undertook to consider C.C. as a caregiver in the event of a future breakdown. It said it would be obligated to do so anyway. The Society said it would be prepared to notify C.C. if the placement breaks down regardless of where the Status Review proceeds, so she can come forward at that point. The Society was also content that C.C. file an alternative Plan of Care in the event the placement breaks down. Such a plan then would be in its files, or on CPIN.

[111] But these arguments are somewhat besides the main point. The arguments that C.C. was not planning for care as of March 15, 2022 and therefore she did not need to be a party underscore how C.C. is in a bit of a ‘catch-22’ situation. Had C.C. put forward a competing plan, this might have been pointed to as evidence that she is blocking the reunification. But she did not put forward one, and so it is said that she therefore does not need extra rights in the litigation as a result.

[112] More fundamentally, I do not find this argument, that she does not have a competing plan to provide for A.M.’s care to be dispositive of the issue of whether she should be made a party, because planning for the care of a child is not the only matter that may form part of a plan. While she was not on March 15, 2022 seeking care, neither the Society nor the parents are supporting her position respecting her claims for access. Without making some form of an order respecting her rights to participate in this case, she cannot claim an order for access to the child. Therefore, she wished to put forward a competing plan for access. See Windsor-Essex Children’s Aid Society v. J.D., 2017 ONCJ 20 .

[113] I find that C.C. wants to, and is capable of putting forward a plan for access. She also has a legal interest in the case in that an access order may be made in her favour if she is allowed to pursue it. If the Court grants C.C. party status, section 104(1)(a) is the statutory authority for her access claim. That section provides that the Court may order access and impose such terms and conditions as the court considers appropriate.

[114] And even though the proposed plan as of March 15, 2022 was as to access only, this Court cannot ignore that the parents in this case struggle with addiction and their situation remains dynamic. As I said at the outset of this decision, their road to recovery will necessitate ongoing work. They needed and still need support.

[115] The parents were unable to care for this child for months. A.M.’s reality is that she has been cared for by C.C. for most of her life, starting when she was just four months old. She has developed bonds to C.C. and to those in C.C.’s household. C.C. needs to remain a presence in case the reunification fails.

[116] For those reasons, C.C. will be added as a party to this proceeding under rule 7(5) of the Family Law Rules .

F. C.C. Had Participatory Rights At One Point, But Whether She Still Does Or Should Have Is Not Clear

[117] Before addressing the access issues, I will briefly comment upon the alternative argument that C.C. has participatory rights that should be expanded, because the interpretation of section 79(3) very much interacted with the other arguments being made about party status.

[118] It was not disputed that C.C. already had participatory rights provided for by section 79(3) when this motion began on March 15, 2022. That is because it is not disputed that A.M. was in C.C.’s full time care as of April 1, 2021, and some of the time for a few months prior to that. There was some dispute in the affidavit evidence about the date upon which C.C. began caring for the child part-time between late January, 2021 and April 1, 2021, and also about the amount of time she provided care during those months.

[119] Regardless of the precise schedule that was in place between late January, 2021 and April 1, 2021, the evidence before the Court is that C.C. was involved in A.M.’s care. I also observe that she participated in a signs of safety conference on February 26, 2021. Clearly she was part of the plan that the Society was implementing with these parents.

[120] Although there is no factual dispute that A.M. had been in C.C.’s exclusive care from April of 2021 onwards, that was just shy of six months by the time this proceeding began. But there is nothing in the legislation that says that the child needed to be in C.C.’s primary care for her to have provided continuous care within the meaning of section 79(3). The overall tenor of the evidence is that C.C. was a regular presence in this child’s life. As such I find that A.M. was in C.C.’s continuous care for six months by the time of the first appearance on September 14, 2021, let alone by the time this motion was argued.

[121] Alternatively, there is also nothing in section 79(3) that requires the calculation of the six-month period to stop at the commencement of the proceeding, as all counsel also submitted. Section 79(3) is more fluid. Its language provides that the six-month period is to be calculated as of the “hearing”. According to parents’ counsel, the motion I heard on March 15, 2022 qualified as a “hearing”; see Children’s Aid Society of London and Middlesex v. A.L., 2018 ONSC 4569 .

[122] But I also observe once again that this Court then returned the child to the parents on March 15, 2022. While the Court did make a temporary access order, section 79(3) is not triggered by an access order. Does the child’s return to her parents on March 15, 2022 mean that C.C. no longer has the participatory rights? According to Ms. Shiplett on April 20, 2022, the answer to this question is yes. And if that is so, would the Court thus be expanding something that may no longer exist?

[123] While all counsel argued on March 15, 2022 that the calculation of the six months does not end at the commencement of the proceeding, that argument turned on their submissions for a broader interpretation of the word “hearing” in section 79(3), which could include subsequent events in a case. That said, a different (and not necessarily mutually exclusive interpretation) of the word “hearing” in section 79(3) might be that the protection application itself is the “hearing”, and the protection application is on adjournment from the first appearance until there is a final resolution. Were this alternative interpretation to be valid, C.C. would still have participatory rights in this proceeding, despite the temporary order of March 15, 2022 for the return to the parents.

[124] These are interesting questions that I will leave for another day. Given the decision to add C.C. as a party under rule 7(5) , I need not decide whether a “hearing” under section 79(3) may have multiple meanings.

[125] However, I would still not ignore that C.C. is an important person to this child. C.C. has an important perspective about to the child’s best interests, given the history of this case and C.C.’s involvement in parenting. Therefore, if Ms. Shiplett is correct and C.C. lost her participatory status because she cooperated with the child’s temporary return on March 15, 2022, and were that to mean that she could not then even make submissions about the remaining issue for which she says she has an interest (access), I would find that to be very problematic. That would further militate in favour of adding C.C. as a party under rule 7(5) , in my view.

PART VI: ANALSYSIS RESPECTING TEMPORARY ACCESS

[126] That leaves the question of C.C.’s temporary access with A.M. Section 104 directs that the best interests test in section 74(3) applies to this determination. The Court is guided by the paramount purpose of the legislation set out in section 1(1), which is to promote the best interests, protection and well-being of the child. The Court is guided by the other purposes in section 1(2) also. Giving support to the integrity of the family unit is an important other purpose that factors into my decision-making.

[127] On March 15, 2022, the Society was only supporting weekly access between C.C. and A.M. for two months. It proposed this as a continued measure of caution, to help the child transition back to the parents, and to monitor the reintegration as it continues and ideally solidifies.

[128] Thereafter, the Society and the parents said the schedule should move to C.C. and A.M having one weekend per month together. They said that would reflect the relationships that A.M. has developed in C.C.’s household, while recognizing the primary family unit.

[129] C.C. by contrast, points to the circumstances of this child’s life since January of 2022. C.C. lives in a full household, with her father, her sister and her sister’s three children. C.C. says that the child has developed strong bonds to family members. She says the child has developed routines, too.

[130] C.C. takes A.M. to her boyfriend’s parents’ house on Sunday afternoons and evenings for dinner. According to C.C., A.M. has nicknames for her boyfriend’s parents, akin to grandparents. The schedule that C.C. proposes would allow her to continue to take A.M. to the boyfriend’s parents’ house.

[131] Neither of these competing rationales are unreasonable. However, having regard to the specific criteria in the best interest test in section 74(3), I am influenced by many of the same factors I have already addressed when dealing with C.C.’s party status. From the child’s perspective, C.C. is an important person. The parents are not yet ready for a full return of the child into their care. Their situation is still in flux and needs ongoing monitoring. I would have found this, quite apart from the 14B Motion that was brought to my attention on April 14, 2022.

[132] In my view, the amount of time that the Society and the parents propose that C.C. have with A.M. is too infrequent, especially were the Court to order the proposed step down. This is a young child who has been parented by C.C. for most of her life. On the other hand, it seems to me that C.C.’s request is a bit too much, if the reunification is to continue to progress. Subject perhaps to new developments, which will have to be addressed in the future, the Court finds elements of both competing plans strikes a better balance.

PART VII: THE 14B MOTION DATED APRIL 14, 2022

[133] Late in the day on April 20, 2022, the Court was advised that the 14B Motion had been filed. I was told that there had been a relapse and the parties had separated. I was then told that the parties had reconciled and that the mother will be participating in a 35-day rehabilitation program.

[134] The Society said it was content to withdraw the 14B Motion as the father had acted proactively and he is now supervising the mother’s time with the child in the home.

[135] I have now seen the Society’s 14B Motion dated April 14, 2022. In it, the Society asks the Court to schedule a motion date earlier than June 10, 2022, or alternatively that it be given leave to bring a motion on June 10, 2022 if no earlier date is available. The short affidavit of Kim Jefferson sworn April 14, 2022 states that the father telephoned the Society on April 5, 2022 to advise that the mother left the house for two days and then sent him a text message that she had relapsed. The father would not allow the mother back into the home and in response the mother called the police.

[136] During his telephone conversation with the Society, t he father was asked and reported to Ms. Jefferson that he is still sober and he is not using drugs. After consulting with a supervisor, Ms. Jefferson also asked the father what his plan for day care is, but he responded that he worked from home and so that was not an issue at this time.

[137] While I agree based on the information now before me that the father acted appropriately and it seems that matters have calmed down, I am not prepared to leave this matter until June as currently scheduled. There are a number of questions that I have which are not addressed in the short affidavit requesting leave to bring a motion. The parents have not had an opportunity to respond either. I intend to schedule a case conference, ideally this week.

[138] The Court needs an update about the following:

(a) the status of the parents’ relationship; (b) the ongoing situation respecting any drug use; (c) the status of the relationship counselling; (d) further details about the rehabilitation program that is being proposed for the mother; (e) details about the supervision that the father is providing and any risk that the mother’s presence in the home might destabilize the father’s own continued recovery; (f) details about the frequency with which the Society is monitoring the parents and conducting home visits; and (g) whether this child should be enrolled in day care even if the father is at home during the day, so that there may be additional support for the parents and monitoring in the community.

[139] If after the conference any party feels that a motion is necessary, that may be addressed at the upcoming attendance too.

PART VIII: ORDER

[140] I make the following order:

(a) C.C. is added as a party to this proceeding pursuant to rule 7(5) of the Family Law Rules . C.C.’s Answer and Plan of Care shall be served and filed within 30 days; (b) C.C. shall have access to A.M. on the four-week rotation set out below; (c) Commencing Wednesday, April 27, 2022, C.C. shall have temporary access with the child on Wednesdays from 10:00 am until Thursdays at 6:00 pm. This shall be in place for three weeks; (d) During the fourth week C.C. shall instead have temporary access to A. M. on Friday at 10:00 AM to Monday at 10:00 AM (the first weekend shall be May 20, 2022); (e) The schedule shall then repeat; (f) The parents and C.C. may agree to other visits; (g) In addition, the Society has discretion to increase the amount of time that A.M. is in C.C.’s care depending on the state of the reunification and any observations about the child under the new arrangement that it sees. The access should not be increased to the point that it is tantamount to a change in placement. If the Society feels that is necessary, or if it seeks a change in placement specifically, the matter must be returned to Court. The matter may also be returned to Court if the parents disagree with the Society’s exercise of discretion; (h) The Society should work on preparing a revised Statement of Agreed Facts to address the deficiencies set out above in this decision, although the Court is not yet certain that this case is ready for a resolution in view of the recent developments; and (i) The attendance currently scheduled for June 10, 2022 at 11:00 AM is vacated. The parties are instead to appear before me for a case conference by zoom on April 29, 2022 @ 9 AM. The Court requests briefs or Confirmation Forms with an update about the matters set out above. If counsel are not available on April 29, 2022 then the parties may contact me through the trial coordinator to arrange a reasonable alternative date that is proximate in time. [5]

[141] I thank counsel for their assistance.

Justice Alex Finlayson Released: April 26, 2022

SCHEDULE “A” – LEGISLATION AND RULES

Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Schedule 1

Paramount purpose and other purposes

Paramount purpose

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

Other purposes

1 (2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:

1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.

3. Services to children and young persons should be provided in a manner that, i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment, ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons, iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, iv. takes into account a child’s or young person’s cultural and linguistic needs, v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.

4. Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible.

5. Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.

6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.

7. Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families.

Interpretation

Definitions

2 (1) In this Act,

“foster care” means the provision of residential care to a child, by and in the home of a person who, (a) receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997 , and (b) is not the child’s parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing), and “foster home” and “foster parent” have corresponding meanings.

“relative” means, with respect to a child, a person who is the child’s grandparent, great-uncle, great-aunt, uncle or aunt, including through a spousal relationship or adoption.

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.

Part V: Child Protection

Definitions

74 (1) In this Part,

“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.

Best interests of child

74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; (b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and (c) consider any other circumstance of the case that the person considers relevant, including, (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

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.

Right to participate

79 (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 lawyer; and (d) may make submissions to the court, but shall take no further part in the hearing without leave of the court.

Order to produce child or bring child to place of safety

81 (4) Where the court is satisfied, on a person’s application upon notice to a society, that there are reasonable and probable grounds to believe that, (a) a child is in need of protection, the matter has been reported to the society, the society has not made an application under subsection (1), and no child protection worker has sought a warrant under subsection (2) or brought the child to a place of safety under subsection (7); and (b) the child cannot be protected adequately otherwise than by being brought before the court, the court may order, (c) that the person having charge of the child produce the child before the court at the time and place named in the order for a hearing under subsection 90 (1) to determine whether the child is in need of protection; or (d) where the court is satisfied that an order under clause (c) would not protect the child adequately, that a child protection worker employed by the society bring the child to a place of safety.

Adjournments

94 (1) The court shall not adjourn a hearing for more than 30 days, (a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or (b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.

Custody during adjournment

94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child, (a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; (b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; (c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or (d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

Access order

104 (1) The court may, in the child’s best interests, (a) when making an order under this Part; or (b) upon an application under subsection (2), make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

Family Law Rules, O. Reg. 114/99

Primary objective

2 (2) The primary objective of these rules is to enable the court to deal with cases justly.

Dealing with cases justly

2 (3) Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

Duty to promote primary objective

2 (4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

Duty to manage cases

2 (5) The court shall promote the primary objective by active management of cases, which includes, (a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial; (b) encouraging and facilitating use of alternatives to the court process; (c) helping the parties to settle all or part of the case; (d) setting timetables or otherwise controlling the progress of the case; (e) considering whether the likely benefits of taking a step justify the cost; (f) dealing with as many aspects of the case as possible on the same occasion; and (g) if appropriate, dealing with all or any part of the case without requiring parties, witnesses or lawyers to attend in person on the basis of written documents or by using telephone or video technology, by way of an order u nder clause 1 (7.2) (i) or (i.1).

Parties

Who are parties — case

7. (1) A person who makes a claim in a case or against whom a claim is made in a case is a party to the case.

Who are parties – motion

7(2) For purposes of a motion only, a person who is affected by a motion is also a party, but this does not apply to a child affected by a motion relating to custody access, chid protection, adoption or child support.

Persons who must be named as parties

7 (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.

Parties in cases involving children

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, 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 ).

Party added by court order

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.

COURT FILE NO.: FC-21-24-00 DATE: 20220426

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Durham Children’s Aid Society Applicant

• and – J.S. Respondent mother
• and - S.M. Respondent father

REASONS FOR DECISION Justice Alex Finlayson

Released: April 26, 2022

[1] For example, see seldom used section 81(4) of the CYFSA which authorizes persons other than a Society to launch a protection application. That would make that other person an applicant under section 79(1)(1.) and the Society would then be a respondent.

[2] Two other cases from the same court reaching a similar conclusion are Children’s Aid Society of the Districts of Sudbury and Manitoulin v. E.L., 2020 ONCJ 677 and Children’s Aid Society of Algoma v. T.M., 2021 ONCJ 640 .

[3] See again Windsor-Essex Children’s Aid Society v. R.L., 2012 ONCJ 325 and in Children’s Aid Society v. S.B. and C.G , 2018 ONSC 5301 which seriously question the Court’s ability to exclude a “parent”/statutory party from a child protection proceeding.

[4] The Ontario Court of Appeal adopted Czutrin J.’s additional factors in A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 705 .

[5] I understand that the mother may be starting rehabilitation on April 26, 2022 and will have limited access to a telephone while there. I would ask her counsel to please make inquiries with the rehabilitation center to see if the mother may attend.