DATE: 20021216

DOCKET: C38900

COURT OF APPEAL FOR ONTARIO

WEILER, CHARRON and MOLDAVER JJ.A.

B E T W E E N:

R.L. and T.L.

Tamra A. Mann,

for the appellants

Applicants (Appellants)

• and -

CHILDREN’S AID SOCIETY OF THE NIAGARA REGION, R.K. and C.K., C.M. and JOHN SIMON (counsel for the children, J.K. and R.K., born July 29, 1999 and M.K., born July 23, 2000)

Donna Wowk, for the respondent, Children’s Aid Society of the Niagara Region

R. John Harper for the respondents, R.K. and C.K.

Nelson A. McKay, for the respondent, C.M.

and Martha Heder, for the Office of the Children’s Lawyer

Respondents

Heard: November 6, 2002

On appeal from the order of Justice J. R. Henderson of the Superior Court of Justice dated October 4, 2002.

WEILER and CHARRON JJ.A.:

[1] This appeal concerns three children of pre-school years, all natural siblings, who are the subject of ongoing child protection proceedings commenced in the Ontario Court of Justice at Welland, Ontario. The children were apprehended from their natural parents by the respondent Children’s Aid Society of the Niagara Region (the “CAS”) over two years ago. The appellants are the foster parents with whom one of the children has resided for over two years and the other two children for over one year. They are willing to adopt the three children. Despite the length of time since the children’s apprehension from their natural family, there has not yet been a determination by the court whether the children are in need of protection. As will become apparent, the inordinate delay in achieving a permanent placement for these young children lies at the core of this litigation. The issue for determination by this court is whether Henderson J. erred, in these unusual circumstances, in refusing to exercise the parens patriae jurisdiction of the Superior Court and to make an order respecting the residence of the children pending final determination of their status in the Ontario Court of Justice.

Statutory Framework

[2] Before describing what happened in this case, it may be useful to briefly set out the intended course of child protection proceedings under the Child and Family Services Act R.S.O. 1990, c. C.11 (“the Act”). It may assist in understanding the nature of the difficulties created by the delay in this case.

[3] When a child is apprehended, with or without a warrant issued by a justice of the peace, an application to have the child declared a child in need of protection is to be made within five days: s. 40(2)(7) and s. 46 (1). Where an application is made to have the child declared a child in need of protection and that application has not been heard within three months, the court must fix a date for the hearing of the application: s. 52. A hearing cannot be adjourned for more than thirty days without the consent of all parties and of the person caring for the children: s. 51. Before determining an application the Court must obtain and consider a plan for the child’s care prepared in writing by the Society: s. 56. That plan is to include a statement of the criteria by which the Society will determine when its supervision or wardship is no longer required and an estimate of the time required to achieve the purpose of the Society’s intervention.

[4] When a protection hearing is held and a court declares that a child is in need of protection, the court must make one of three orders: a supervision order, a society wardship or a Crown wardship: s. 57(1). Prior to making such an order, the court is required to ask what efforts the Society has made to assist the child before intervention and to be satisfied that less restrictive alternatives have been attempted and failed, refused by the parent or would be inadequate to protect the child: s. 57(2)(3). If it is necessary to make an order removing the child from the person who had charge of him or her immediately before the Society intervened, the court must consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under the supervision of the Society before making an order for society or Crown wardship: s. 57(4). The court may order that the child, a parent, or a person, except a foster parent, in whose charge the child has been or may be, undergo an assessment: s. 54(1). When a child is made a society or a Crown ward, the Society chooses a placement for the child. A child is not to be placed outside Ontario, however, unless the Director is satisfied that extraordinary circumstances justify the placement: s. 61(4). The Director is a person appointed under subsection 5(1) of the Act by the Minister of Community and Social Services.

[5] Hence, within a short time after apprehension, the Society is obligated to provide the court with a written plan of care and information that will enable the court to ascertain whether a member of the child’s extended family is an appropriate caregiver. If it is apparent that a child is in need of protection, because, for example, the parents have abandoned the child and time to explore placement with a family member is required, the Society may request that the court declare the child a ward of the Society. Society wardship, combined with supervision, cannot exceed an aggregate of twelve months: s. 57(1)4. Towards the end of the period specified in the court order for supervision or society wardship a review of the child’s status will generally be requested by the Society. The Act stipulates in s. 70 that the court shall not make an order that results in the combined total period for a child being in the Society’s care that exceeds twenty-four months or, pursuant to the recent amendments to the Act, in the case of a child under the age of six years, twelve months. The time limit may be extended by an additional six months. This time limit includes any interim care orders made during an adjournment of a protection proceeding. It excludes the time to dispose of any appeals from orders that have been made. Society wardship therefore gives the Society a finite time within which to determine if the best interests of the child lie with being returned to a parent or with his or her extended family.

[6] Prior to the expiry of the order for supervision or society wardship, the Society is required to apply to the court for a review of the child’s status under s. 64(2)(b). On a status review application the court may make a further order or orders under s. 57, such as an order of Crown wardship.

[7] It is only once a child has been made a Crown ward that the Act states the Crown has the rights and responsibilities of a parent for the purpose of the child’s care, custody and control: s.63(1). Until that time, the Act recognizes that children continue to be the responsibility of their parents by making provision in s. 60 for a parent to be ordered to pay support for a child. The Act also contains a presumption that access with “the person who had charge of the child immediately before intervention under this Part” is in the best interests of the child unless the court is satisfied that this would not be in the child’s best interests: s. 59(1). Therefore, until an order of Crown wardship is made, the parents of a child retain a presumptive right of access. Once an order for Crown wardship is made the presumption respecting access is reversed.

[8] Crown wardship lasts until it is terminated by court order, adoption or until it expires such as when the child attains the age of eighteen or marries, whichever comes first : ss.57(1)3, 65, 71(1). A society has a duty to make all reasonable efforts to secure the adoption of every child who has been made a Crown ward pursuant to child protection proceedings. Once the time limit for appealing an order of Crown wardship has passed or the appeal has been disposed of, the Society may place the child for adoption: s. 140. Following an adoption homestudy the child is placed with his or her proposed adoptive parents. Again, the child cannot be placed outside of Canada unless the Director is satisfied that “a prescribed special circumstance justifies the placement”: s. 142(4).

[9] It follows from the above-noted process that the Act envisages that, if it is not possible to return a child to his or her parent, the possibility of placement with a member of the child’s extended family will be explored expeditiously and determined prior to any hearing at which society or Crown wardship is sought. The Act does not envisage a contest between members of a child’s family and a foster parent at a hearing to declare whether the child should be declared to be a society or Crown ward. However, foster parents may play a role in the child protection proceedings. As this court has stated in G.(C.) v. Catholic Children’s Aid Society of Hamilton-Wentworth, “[t]he legislature has demonstrated sensitivity to the circumstances of foster parents who have had care of the same children for an extended period of time”. Subsection s. 39(3) of the Act provides that foster parents who have cared for a child continuously during the six months immediately before the hearing are entitled to the same notice of the proceeding as a party, they are entitled to be present and represented by a solicitor at the hearing, and to make submissions to the court.

[10] The foster parents may play a greater role in the process after a child has been made a Crown ward. The Act provides that after a child who is a Crown ward has resided continuously with the same foster parents for more than two years, the foster parents’ wishes must be taken into account in respect of major decisions: s. 61(5)(b). The foster parents are also provided with 10 days notice prior to removal of a child who is a Crown ward from their residence, and have the right to a review of the decision under s. 68 of the Act : ss. 61(7) and (8). The review is first made by the Society’s board of directors and its decision can be further reviewed by a Director. The decision of the Director is subject to judicial review. See: Children’s Aid Society of Metropolitan Toronto v. Dizio (1990), 1990 6917 (ON SC), 27 R.F.L. (3d) 311, 75 O.R. (2d) 92 (Div. Ct.) a case in which the court quashed the Director’s decision to uphold placement of a child with a potential adoptive mother because the decision had not been made on the basis of the best interests of the child.

[11] The Act also envisages that a foster parent may wish to adopt a child. Section 144 of the Act states that, where a society makes a decision refusing to place a child with a person, including a foster parent who is caring for the child, for adoption, a Director may review the decision of the Society and may confirm or rescind the decision and do anything that the Society may do with respect to the child’s placement. In reviewing any decision, the Director must take into account the importance of continuity of the child’s care.

[12] The adoption process under the Act, of course, is one that comes at the final stage of the child protection proceedings. In this case, the proceedings, although commenced over two years ago, are still at the initial stage. As noted earlier, the threshold hearing to determine whether they are in need of protection has yet to be heard. As will become apparent, the appellants’ expectations are more consonant with the final stage of the proceedings. This may be understandable, given the delay. For example, the record reveals that the appellants, at the same time as they brought this application in the superior court, sought a s. 144 review by the Director in regard to what they viewed as the Society’s refusal to place the children with them for adoption. Not surprisingly, they were advised that their request was premature because the children were not as yet available for adoption. It is our view that, although again perhaps understandable given the inordinate delay in this case, their application in the superior court is, likewise, misconceived. Before dealing with the jurisdictional issue that is raised by this appeal, we will briefly review what happened in this case.

Facts

[13] Two of the children, J. and R., twins born on July 29, 1999, were initially apprehended on January 11, 2000, and a protection application was filed on January 14, 2000. The twins were returned to their parents’ care subject to the supervision of the Society. Six months later, their younger sibling, M., was born on July 23, 2000. The three children were later apprehended on November 3, 2000. A protection application was filed with the court on November 8, 2000 in respect of M. and a motion was made on the same day to vary the existing supervision order with respect to the twins. All three children were placed in the temporary care of the Society pending the determination of the protection applications. M. was placed with the appellants and has resided with the appellants since that time. The twins were initially placed in another foster home but were transferred to the appellants’ home on November 5, 2001, where they have since resided.

[14] Hence, two separate protection applications are presently outstanding in the Ontario Court of Justice in respect of the children. The biological parents initially opposed the applications and the matters were placed on the trial list in April 2001. However, the parents left the country in May 2001, seemingly abandoning the children. Despite this, no protection finding has been made and no trial date set.

[15] On June 4, 2001, the court made an order adding A.M., the children’s paternal grandmother, as a party to the protection proceedings. On June 13, 2001, A.M. presented a plan of care for the twins but advised that she could not assume the care of M. Later in August 2001, A.M. advised that she could not present a plan of long-term care for the children but that she would explore other placement possibilities within the extended family. On October 30, 2001, almost a year after the children had been apprehended, A.M. advised the Society that another son and his wife, the respondents, R.K and C.K., who live in Missouri and have two children, wished to present a plan of long-term care for the twins R. and J.

[16] On November 5, 2001, the Society transferred the twins R. and J. to the appellants’ home. The appellants state that they were advised by a CAS worker that the children would eventually be theirs to adopt. It is not until January 2002 that they learned that R.K. and C.K. had presented a plan of care with respect to the twins. Their plan of care had been presented within one week of the twins’ placement in the appellants’ home; it proposes that the twins be placed with them.[^1] Later in March 2002, another member of the children’s extended family, the respondent C.M., presented a plan of care proposing that M. be placed with her. Shortly after learning of M.C.’s plan of care, the appellants, by letter to the CAS dated March 25, 2002, expressed their concern in respect of the separation of the children and their uprooting from the appellants’ home. The appellants were advised to retain counsel.

[17] Since presenting plans of care for the children, the individual respondents have maintained contact with the children and a number of extended visits were arranged within the parameters permitted by the interim orders made in the Ontario Court of Justice. Home studies in relation to the plans of care presented by family members were completed and placements as proposed were recommended. All parties, except the appellants, support the plans of care presented by the family members.

[18] On May 16, 2002 the CAS notified the appellants of its intention to have the protection applications disposed of summarily by the court on May 28, 2002. It was anticipated that the applications would be unopposed and that the court would make an order for Crown wardship without access. The CAS also advised the appellants of its intention to have the children reside with the respondent family members on an extended access visit if the applications were not disposed of on May 28 as planned. The appellants reiterated their concerns with respect to the separation of the children and the plan for extended visits away from their home. They took the position that since the children have bonded with each other, and with them and their own children, it was in the children’s best interests that they not be removed from their home pending the final disposition of the protection hearings.

[19] The CAS maintained its position despite the appellants’ concerns. Consequently, on May 21, 2002 the appellants commenced this application in the Superior Court of Justice requesting an injunction prohibiting the CAS from removing the children from their home and a declaration that the best interests of the children are served by having the children continue to reside in the appellants’ home pending the determination of their status by the Ontario Court of Justice. On May 22, 2002, they obtained an interim order in the Superior Court of Justice granting residence of the children in their home pending the hearing in the Ontario Court of Justice on May 28, 2002. The application in the Superior Court was adjourned to May 29, 2002.

[20] The appellants also brought a motion returnable on May 28, 2002 in the Ontario Court of Justice seeking leave under s. 39(3) of the Act to participate more fully as parties to the ongoing protection applications. Their motion was brought before Budgell J. of the Ontario Court of Justice together with the CAS’s motion for summary disposition of the protection applications. Budgell J. was not prepared at that time to dispose of the applications on a summary basis as proposed by the CAS because it became apparent to him that significant time would be required to hear from everyone involved, including the appellants. He therefore made an interim order with respect to access to family members and adjourned the matter to August 1, 2002.

[21] On May 29, 2002, and from time to time thereafter pending the disposition of the application in the Superior Court, the appellants obtained a series of interim orders in the Superior Court requiring that the children continue to reside in their home subject to specified access by extended family members.

[22] On August 1, 2002, the parties reappeared before Budgell J. in the Ontario Court of Justice. The court entertained submissions with respect to the participation of all concerned persons. He added R.K. and C.K. as parties at their request, but did not add C.M. as no such request had been made by her counsel. He refused to add the foster parents stating the following,

Based on everything I have heard, and I have heard and read a lot, I am of the view that if the legislature had anticipated foster parents, such as the foster parents here being involved, it would have said so in more specific terms.

[23] Budgell J. expressed the view that it was “unfortunate, at best, and inappropriate, at worst, that the matter has taken so long.” He therefore ordered that a settlement conference be conducted on an expedited basis, pending which the children were to remain in the care and custody of the CAS with continued access to family members.

Proceedings before Henderson J.

[24] On August 6, 2002, the respondents moved before Henderson J. of the Superior Court for an order dismissing the foster parents’ application for lack of jurisdiction. The respondents submitted that all child protection proceedings in Ontario are governed exclusively by the Act. They further submitted that, because the Ontario Court of Justice was the specified court with jurisdiction to entertain the child protection applications under the Act, the Superior Court of Justice had no residual jurisdiction to intervene. The respondents recognized that the Superior Court of Justice has inherent jurisdiction to deal with all matters related to children in the province. This jurisdiction is commonly known as the parens patriae jurisdiction of the court. However, they argued that this jurisdiction is to be exercised rarely and only where there is a gap in the legislation or in the case of judicial review, neither of which applied in this case.

[25] On this preliminary issue of jurisdiction, the foster parents took the position that there is a gap in the legislation that allowed the Superior Court of Justice to exercise its parens patriae jurisdiction and make the order requested. They submitted that this gap is created by the fact that the Act provides no mechanism by which a foster parent may challenge CAS decisions with respect to the residence of the children pending the determination of their status under the child protection applications in the Ontario Court of Justice. Hence, in this case, the appellants say they would be unable to challenge or appeal a decision by the CAS to remove the children from their home. The appellants acknowledged before Henderson J. that they were not seeking judicial review. However, as an alternative argument, they requested that the application be treated as a judicial review and transferred to the Divisional Court if the applications judge found it appropriate to do so.

[26] Henderson J. accepted the position advanced by the respondents. He referred to this court’s decision in G.(C.) v. Catholic Children’s Aid Society of Hamilton-Wentworth (1998), 1998 3391 (ON CA), 39 R.F.L. (4th) 389 (Ont. C.A.) and concluded that the Superior Court of Justice may exercise its inherent parens patriae jurisdiction regarding the protection of children where there is a gap in the governing legislation, or in the case of judicial review. After considering the provisions of the Act as a whole, the role of foster parents under the legislative scheme and the case law, the applications judge concluded that there was no gap in the legislation as contended by the appellants. On the question of judicial review, the applications judge held that a decision by the CAS as to the residence of children prior to a finding that the children are in need of protection is not subject to judicial review. In any event, he found that judicial review was not available in this case because the foster parents had not exhausted all available remedies under the Act and that, in several respects, their application was largely premature. Consequently, he concluded that there was no basis to exercise the court’s inherent jurisdiction in this case. By judgment released on October 4, 2002, he dismissed the application. All interim orders made in the Superior Court of Justice were vacated at that time.

[27] The appellants then launched this appeal and, as a result of the proceedings in this court, no further steps have been taken in the Ontario Court of Justice. Interim orders regarding the children’s residence and access to family members had been made from time to time in this court pending the hearing of the appeal on November 6, 2002.

Analysis

[28] In our view, the applications judge was correct in dismissing the application. We would therefore dismiss the appeal. Our reasons are as follows.

[29] We note firstly that this appeal does not deal with the question of judicial review. Counsel for the appellants conceded before this court that there is no basis for judicial review on the facts of this case. Hence, no appeal is taken from the applications judge’s finding that it was not open to the appellants to seek judicial review in this case. We therefore make no comment on the applications judge’s analysis on this issue.

[30] While it would appear that the appellants’ position before Henderson J. was that the court should exercise its inherent jurisdiction because there was a gap in the legislation, their argument on this point has been somewhat modified on appeal. They now take the position that the applications judge erred in finding that the Superior Court’s parens patriae jurisdiction regarding the protection of children is confined to gaps in the legislation or to judicial review. They submit that, absent an express legislative provision to the contrary, the Superior Court has a residual and overriding jurisdiction to supervise all matters concerning the interests of children. They acknowledge, however, that resort to parens patriae jurisdiction should be limited to situations that are not contemplated by the legislation where it becomes necessary for the court to intervene to protect the children.

[31] The appellants submit that this is a case that is not contemplated by the Act given the fact that more than two years have passed without a post-apprehension hearing being held to determine the status of the children. They submit that the Act can only be considered a complete code in respect of the role of foster parents in the context of the timelines contemplated by the Act. When these timelines are exceeded, they argue that the children’s strong primary attachments to their foster parents as caregivers become a paramount, if not overriding, factor in the determination of their best interests regardless of the stage of the protection proceeding. The appellants therefore take the position that, in this case, it has become necessary in the best interests of the children for the Superior Court to exercise its inherent jurisdiction and make an order that the children reside with them until the final determination of their status in the protection proceedings. They submit further that this court’s decision in G.(C.), which held that there was no gap that needed filling in this legislative scheme, can be distinguished because that case involved a situation at a later stage in the proceedings, after the child was made a Crown ward.

[32] The appellants argue that there is another basis to justify the exercise of the Superior Court’s general supervisory power. They submit that the CAS, in arranging for “extended visits” between the children and members of their extended natural family pending the trial, is improperly depriving the appellants of their limited statutory entitlements under the Act and subverting its legislated obligation to promote the best interests of the children. The appellants submit that the CAS, without receiving the approval of the court, is attempting to create a new status quo with respect to the potential placement of the children for adoption in favour of the family members’ position and to the detriment of their own position. This conduct, they argue, constitutes an improper use of its discretion.

[33] We will deal with the second argument at the outset. In our view, the argument cannot prevail for several reasons.

[34] First, the argument, which is based on an allegation of abuse of discretion by the CAS, is inconsistent with the appellants’ concession that there is no basis for judicial review in this case.

[35] Second, the appellant’s allegation of abuse of discretion in relation to the visits between the children and family members ignores the court’s obligation under s. 57(4) to consider the possibility of placing a child “with a relative, neighbour or other member of the child's community or extended family” before making an order for society or Crown wardship. Hence, an investigation by the CAS into the plans of care presented by the family members is entirely consistent with the legislative scheme. Whether the CAS, under the guise of arranging access, is entitled to effect a residential placement for the children with extended family members at this stage of the proceedings is another question: see s. 61 of the Act with respect to the residential placements of children after they have been made society or Crown wards. However, this brings us to our third point.

[36] Third, the record shows that the question of the extended visits with family members was canvassed before Budgell J. in the Ontario Court of Justice and, hence, contrary to the appellants’ submission, it was subject to the court’s approval. Budgell J., in his interim order, could have placed whatever restrictions on the children’s access to the respondent family members that he saw fit. The formal order made by Budgell J. on the issue of access reads:

Access as arranged in the past should be continued but reasonable access is to be provided to the children by [R.K. and C.K. and C.M.] and it should include some vacation time in August.

[37] Further, in his reasons, he stated that it was the view of the court “that the children should not be removed from their present foster setting”. It became apparent during the hearing of the appeal that the parties disagreed on their interpretation of the scope of access permitted by Budgell J.’s order. The CAS’s interpretation of “reasonable access” that did not amount to removal from their present foster setting was that it had the right to place the children on a series of “extended visits” with the respondents. It was intended that the children would reside with the appellants for only a few days in between these visits. After a few such visits, the CAS planned to place them on an “indefinite extended visit” with these relatives. The appellants took the position that this access plan in effect constituted a premature residential placement of the children as wards without court approval. Given the parties’ disagreement over the meaning of the access order, this court encouraged the parties to seek a clarification from Budgell J. Any uncertainty surrounding this issue, however, is clearly a matter to be resolved in the Ontario Court of Justice and not a basis for exercising the Superior Court’s inherent jurisdiction.

[38] Finally, prior to the initial hearing foster parents are meant to provide temporary care for children pending their return to their family or transfer to a more permanent placement. They are not intended to provide a comparative basis for the determination of the child’s best interests from the outset. A best interests comparison between the foster home and the original family at this stage would run contrary to the entire scheme of state intervention in cases where there is reason to believe that a child is in need of protection. As Nasmith J. aptly put it in Children’s Aid Society of Metropolitan Toronto v. S.(D.), 1991 4537 (ON CJ), [1991] O.J. No. 1384 (Prov. Div. Ct.):

There is no logic in the notion that there can be a ‘best interests’ comparison of two placements in the sense of determining which of two placements is ‘better’ and at the same time accommodating the legal priorities given to the family at the initial stages. … Once the family placement has been deemed inadequate, then, and only then, do temporary foster placements open up for comparison.

If comparisons between foster parents and original families were legitimate from the outset, it would be tantamount to declaring open season on each and every child who was moved, however temporarily, into a foster home. When could it not be said that there was an attachment between a foster parent and a child and that moving the child back to the family would break the attachment. When could it not be said that the foster home had advantages over the original home. It would be ironic if foster homes were being chosen where the foster parents were so casual that there was no attachment or where the resources were no better than the family that was being assisted.

[39] It is also clear from reading the Act as a whole, including the specific provision contained in s. 57(4) referred to earlier, that consideration of the family may go beyond the natural parents and others who had charge of the child immediately before apprehension and may extend to relatives and other members of the children’s community.

[40] The approach on an initial hearing is different than when a status review hearing is held after a child has been declared subject to the supervision of the Society or has been made a society ward. As Osborne J.A. held in Peel C.A.S. v. W (M.J.) (1995), 1995 593 (ON CA), 23 O.R. (3d) 174 at 189:

On a status review hearing under s. 65, once it is established that the child is in continued need of protection and court intervention continues to be necessary, the court is required to consider the least restrictive alternatives consistent with the child’s best interests. This may or may not involve the potential for some form of familial care. I do not think that on as status review hearing, a plan proposed by “extended family” (s. 57(4)) is to be given a prima facie elevated status.

Values which the C.F.S.A. seeks to preserve through s. 57(3) and (4) come into play when the child is removed from the care of the person in charge of the child immediately before state intervention. It is at that point that relatives, neighbours, and extended family are given a sort of priority consideration. This is because these potential placements may be in a child’s best interests because they tend to be less intrusive. When more permanent steps are in issue, as was the case here, once it is determined that the child is in continued need of protection and that the court intervention is required, the court is required to consider among other things, the least restrictive alternative (s. 65(3)(h)) consistent with the pervading principle of the child’s best interests. That is not to say that a plan of care advanced by a relative, or extended family may not be the least restrictive alternative and be a plan consistent with the best interests if the child. Such a plan should, in my view, simply be considered with other viable options.

[41] In this case, the appellants are known as “risk foster parents”. As noted by the applications judge, this designation applies to foster parents who have expressed an interest in adopting a foster child who has been placed with them if that foster child is made a Crown ward. There is an inherent risk in such situations that the duration of foster parenting may be more than just temporary and that strong attachments would be formed. However, the special role that foster parents may end up playing in the children’s lives by reason of these circumstances does not alter their status under the Act. The foster home is not intended to provide a comparative basis in the assessment of the plans of care, if any, that are presented by family members for consideration by the court at this stage of the proceedings. In this respect, it is noteworthy that foster parents are specifically excluded as possible subjects of any order for assessment under s. 54(1) of the Act:

54.(1) Where a child has been found to be in need of protection, the court may order that within a specified time,

a) the child; or

b) a parent or a person, except a foster parent, in whose charge the child has been or may be,

attend before and undergo an assessment by a specified person who is qualified, in the court’s opinion, to perform medical, emotional, developmental, psychological, educational or social assessments and has consented to perform the assessment [emphasis added].

[42] Hence, the appellants’ objection to the access visits between the children and members of their extended family, to the extent that it is based on a concern that this increased contact may upset the level playing field pending the initial hearing on the protection applications, is not supported by the statutory scheme. Of course any concern that the children may suffer from a sudden uprooting or too lengthy an absence from their present attachments is entirely legitimate and should be addressed in the making of any interim access order. However, it is one to be addressed in the Ontario Court of Justice, not on this application.

[43] We are not unmindful of the inordinate delay in this case and its consequent effect on all concerned. In this case, the appellants’ first and main contention, as set out earlier, is based on the effect of delay. In essence, they submit that, because of the passage of more than two years since apprehension, this situation falls outside the ambit of the legislation and provides a justifiable basis for the exercise of the court’s parens patriae jurisdiction.

[44] There is no doubt that the delay is of much concern in this case, as it is in all child protection proceedings. Obviously it is of paramount importance to all children involved and their families that issues of child protection be dealt with as expeditiously as possible or, in the words of the statute, “at the earliest date that is compatible with the just disposition of the application.” It is apparent from a general review of the case law in this area that delay in child protection hearings, unfortunately, is a concern that is not unique to this case. For a thoughtful discussion of the issue, see W. A. McTavish & R. Vogl, “Delay Within the Justice System in Child Protection Cases” (National Judicial Institute Conference, September 2002) [unpublished]. The authors comment on many sources of delay at p. 3:

Every person in the child protection and justice systems, in one way or another, contributes to delay. Each of them possesses the power to reduce delay. For example, parents may delay proceedings by not obtaining counsel in a timely manner or failing to attend at assessment appointments; lawyers may not be prepared for a motion or trial; Children’s Aid Societies may not identify all necessary parties or serve documents in a timely manner on all parties; judges may adjourn trials without concluding the evidence and submissions of counsel; and court administrators may not be able to identify proceedings which have exceeded the time frames of the legislation and the rules of practice.

[45] In this case, the record before this court is not complete on the reasons for the delay in holding a s. 57 hearing and, for that reason, we will not comment on this issue beyond what is necessary to dispose of this appeal. It is apparent from the record of the August 1, 2002 proceeding in the Ontario Court of Justice that Budgell J. was not unmindful of the “unfortunate” if not “inappropriate” situation when he ordered that the process be expedited. Indeed, it would appear most urgent in the interests of the children that there be a permanent placement decision in this case as soon as possible.

[46] It is our view, however, that the delay in this case does not bring this matter outside the ambit of the legislation as contended by the appellants. See Children’s Aid Society and Family Services of Colchester County v. W.(H) (1996), 1996 8714 (NS CA), 25 R.F.L. (4th) 82 (N.S.C.A.) where the Court held that the court does not lose jurisdiction to proceed with a dispositional hearing beyond the stated time limit as long as it is guided in that regard by the best interests of the child. Thus, contrary to the appellants’ submissions, the Act continues to be a complete code although the timelines contemplated by the Act are exceeded. Such an approach is consistent with the legislative scheme as a whole. When the Act is considered as a whole, it becomes clear that extended periods of temporary care in a foster home, while unfortunate, do not fall outside the ambit of the legislation. What is important is that the time limits under the Act be given a construction consistent with the best interests of the child.

[47] Further, the record reveals that the appellants have exercised their right to participate in respect of the court appearances in the Ontario Court of Justice on May 28 and August 1 of this year, and that they intend to continue to so participate in the ongoing proceedings. Hence, it cannot be said, as contended, that they have no remedy under the Act. Indeed, it was fairly conceded at the hearing in this court that this proceeding would not likely have been brought had Budgell J. made a specific order restricting the children’s access to the extended family pending the disposition of the protection applications. Hence, it is clear that the appellants’ concerns in relation to the residence of the children and the extended visits with family members pending the final disposition of the protection hearings in the Ontario Court of Justice do not relate to matters that fall outside the contemplation of the legislative scheme. To the contrary, as the record reveals, they are matters that are being addressed by the Ontario Court of Justice within the context of the protection applications.

[48] Further, while the appellants’ concerns over the passage of time and the consequent effect on the children are quite legitimate, these are also matters for consideration by the Ontario Court of Justice in its determination of the children’s best interests in the context of the protection proceedings. As indicated earlier, before making an order for Crown wardship the court must consider the possibility of returning a child to his or her parent or placement with a member of the child’s extended family. This does not mean, however, that if placement with a parent or family member is possible, a Crown wardship order cannot be made and the child placed for adoption with a non-family member.

[49] Section 37(3) requires that “the person making an order or determination in the best interests of the child” take into consideration a list of circumstances he or she considers to be relevant. These include, the child’s physical, mental and emotional needs; the child’s level of development, religious faith, relationships by blood; the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; the merits of a plan proposed by a society; the child’s views to the extent they can reasonably be ascertained; the effects on the child of delay in the disposition of the case and any other relevant factor [emphasis added]. As stated by this Court in Catholic Children’s Aid Society of Metro Toronto v. M. (1993), 1993 8484 (ON CA), 13 O.R. (3d) 227 affirmed by the Supreme Court of Canada at 1994 83 (SCC), 18 O.R. (3d) 160:

We do not agree…that this means, in the absence of proof of some deficiency in the present parenting capacity on the part of the natural parent, that the child must be returned to the care of the natural parent. A court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the care-givers, whom the child regards as her psychological parents, is severed. Such a factor is a well recognized consideration in determining the best interests of the child which, in our opinion are not limited by the statute on a status review hearing.

[50] Accordingly, in that case where a child had lived with foster parents most of her life and regarded them as her psychological parents, this court concluded that the best interests of the child required that she remain with them. The court allowed the appeal from an order that the child be returned to her natural mother, set aside the order and ordered that the child be made a Crown ward, without access, for the purposes of adoption. As we have indicated, the Act does not envisage a contest between the child’s family and the child’s foster parents prior to the determination of the child’s status. However, depending on the circumstances, the ultimate determination of a permanent placement may well involve such a contest. When it does, it is the best interests of the child, not the rights of the family or the foster parents that is determinative of the outcome.

[51] Hence, the question of the best interests of the children, including a consideration of the delay in this case and the consequent attachments of the children to each other and to the appellants, is not a matter that falls outside the purview of the Act. There is no basis for the Superior Court to intervene and exercise its inherent jurisdiction to protect the children.

[52] For the sake of completeness, we note that the appellants brought a motion to present fresh evidence regarding the steps taken by the CAS after the release of the decision in this application in respect of the access visits between the children and the extended family members. The current plans regarding the children have been alluded to by all parties in their submissions. The fresh is evidence is properly admissible and we have considered it in arriving at this decision.

Disposition

[53] Hence, we conclude that there is no basis on the facts of this case for the Superior Court to exercise its inherent jurisdiction and the application was properly dismissed. For these reasons, we would dismiss the appeal.

[54] Following his decision, Henderson J. received submissions on costs and awarded costs to R.K. and C.K. fixed in the amount of $9,000 and to C.M. fixed in the amount of $6,000. The appellants seek leave to appeal this costs order. Submissions respecting these costs, the costs of the appeal and the two interim motions, may be made in writing. We note that, although not directly applicable, Rule 24 of the Family Law Rules provides that the presumption that a successful party is entitled to costs does not apply in a child protection case or to a party that is a government agency, although the Court has a discretion to nevertheless award costs to or against a party that is a government agency, whether it is successful or unsuccessful. The respondents may file brief written submissions within 14 days, the appellants may respond within 10 days thereafter and the respondents may file their reply, if any, within a further 5 days.

Released: December 16, 2002

“K.M.W”

Signed: “Karen M. Weiler J.A.”

“Louise Charron J.A.”

“I agree M.J. Moldaver J.A.”

[^1]: The Ks have since reconsidered their plan of care and are now willing to take all three children.