Court File and Parties

Court File No.: C 37/12 Date: April 19, 2012

Ontario Court of Justice

Between

CHILDREN'S AID SOCIETY, REGION OF HALTON – Applicant

and

T.A.Z. - Respondent mother D.Z. - Respondent father B.R.P. - Respondent stepfather

Counsel:

• Megan Pallett – Children's Aid Society, Region of Halton
• Jeffrey Hart – for T.A.Z. (mother)
• D.Z. – self-represented (father)
• Cynthia Lauer – for B.R.P. (stepfather)

Before: Justice R. Zisman

Heard: April 4, 2012

Ruling on Motion to Be Added as a Party

1. Introduction

[1] The paternal grandmother, Z.B.H. brings a motion to be added as a party to these proceedings. The mother and stepfather are opposed. The children's aid society takes no position but has advised the court that the society has no protection concerns about the grandmother. The father supports his mother. He has not filed an Answer or Plan of Care. He is currently incarcerated and therefore is not in a position to put forward a plan.

2. Background and the Evidence

[2] The children's aid society issued a Protection Application for a finding that L.J.Z. born […], 2005 was in need of protection on the basis that he was likely to suffer a risk of physical harm while in the care of his mother, T.A.Z.. The society is seeking a 7 month supervision order with the child to continue to reside with the mother but subject to terms and conditions. The society initiated this Protection Application on the basis that there was a report of the mother using inappropriate physical discipline on the child. L.J.Z. has been diagnosed with high functioning autism. He requires many supports and services. The society's concerns were also based on the mother and stepfather not working voluntarily with the society, historic concerns regarding the mother, historic concerns about the child's exposure to domestic violence between the mother and father, recent behavioural problems exhibited by the child and the mother's alleged inability to work co-operatively with the child's school, daycare and other service providers.

[3] The first attendance of the protection application was on February 2, 2012. A temporary order was made on a without prejudice basis that the child remain in the care of the mother on condition that the mother sign all necessary consents and the mother and step father not use any physical discipline on the child. The proceeding was adjourned to March 8, 2012 for a temporary care and custody hearing.

[4] On March 8, 2012 the paternal grandmother was present but the mother and stepfather would not consent to her being permitted to be in the courtroom. I was advised that she wished to bring a motion to be added as a party. The temporary care and custody hearing did not proceed as none of the parties had served and filed their responding materials. An extension was given to all parties to file their materials by March 23, 2012. The matter was again adjourned to April 4th for the temporary care and custody hearing and to hear the grandmother's motion to be added as a party.

[5] The paternal grandmother, who is not represented, filed a motion indicating that she wished to be added as a party and thereafter wished to present a plan to have the child placed in her care or in the alternative for access. At the time of filing her motion she was not aware that the society's position was that the child should remain in the care of the mother.

[6] The paternal grandmother deposes that although it may appear that she was not involved in the life of her grandson that this was not of her own choice. For some time the parents were out of the jurisdiction but when they returned she and her husband welcomed them and their grandson into their home. Once the mother left their home with L.J.Z., she deposes that the mother would not permit her access. She only saw the mother about 7 months later during an attendance at family court.

[7] She further deposed that she is aware of the volatile nature of the relationship between her son and the mother.

[8] The paternal grandmother wishes to be involved in her grandson's life, resume a relationship with him and assist in any way she can. There is extended family that L.J.Z. would also be able to have contact with if the grandmother was granted access.

3. Analysis

[9] The mother and stepfather take the position that it is not necessary for the grandmother to be added as a party as it will delay the proceedings and that her plan can be submitted through the father.

[10] Further, it is submitted that as it appears that the paternal grandmother is now only pursuing an order for access that she could bring a motion pursuant to section 58(1) of the Child and Family Services Act that permits the court to make an order for a person's access that is in a child's best interests.

[11] However, as I read section 58(1) in the context of the scheme of the legislation, it seems to relate to an access order being made after there is a finding of need of protection. Section 58(1) provides that a person may apply for access where a child is in a society's care and custody or supervision. Further, section 58(6) that limits when an application for access can be made, refers to an order for access not being made within 6 months after the making of an order under section 57, that section deals with orders made when a finding of need of protection is made.

[12] At this stage the child is in the care of the mother, pursuant to a temporary without prejudice order and I have reserved my decision on the temporary care and custody hearing. The result of that hearing will either be that the child continues to reside with the mother pursuant to a temporary supervision order or that there be no order, which is the relief that the mother is requested. Accordingly, it is my view that the paternal grandmother could not apply for access pursuant to section 58(1).

[13] Section 50(2) of the Child and Family Services Act is the provision that deals with the orders that can be made during an adjournment, which is the current stage of these proceedings.

[14] I have also considered if a motion for access could be made by the paternal grandmother in the context of the temporary care and custody hearing. But section 51(5) of the Child and Family Services Act provides that the court can make an order for access for any person when making an order under subsection (2)(c) or (d) that is, when placing the child with a person other than the person who had care of the child or if the child is placed with the society. Therefore that provision is not applicable.

[15] I have also considered if an order could be made pursuant to subsection 51(3.2)(b) that permits the court to impose reasonable terms and conditions on the child's parent, the person who will have charge of the child, the child and any other person who is putting forward a plan or who would participate in a plan for care and custody of or access to the child. But in this case, the father has not put a plan forward so the grandmother cannot participate in his plan and the mother and stepfather are opposed to the grandmother being involved in any manner and so she will not part of their plan. She does not otherwise fit into that provision and therefore has no status to formally put forward a plan whether for custody or access.

[16] I therefore must consider if she should be made a party to these proceedings and as a result have the right to fully participate in these proceedings and file a plan of care and bring a motion for temporary access which is the relief she wishes to seek at this stage of the proceedings.

[17] Subrule 7(5) of the Family Law Rules provides that the court has discretion to add any person as a party.

[18] The starting point in any analysis of who should be a party in a proceeding, is the case of Children's Aid Society of London and Middlesex v. S.H., S.W. and D.R.. In that decision Justice Campbell reviewed the pre-existing case law and distilled the following principles a court should consider in deciding whether a person should be added as a party to a child protection proceeding under subrule 7(5) of the Family Law Rules:

i. Did this person's addition as a party serve the child's best interests?

ii. Would this person's addition as a party delay or prolong proceedings unduly?

iii. Was this person's addition as a party necessary to determine the issues?

iv. Was this person capable of putting forward a plan that was in the child's best interests?

v. Did this person have a legal interest in the case?

[19] In this case, L.J.Z. has special needs and the mother needs assistance in meeting all of his needs. The paternal grandmother may be a person who can present a viable plan to assist in meeting those needs whether merely by providing care for the child during access times or by offering an alternative long term plan if the mother is found not to be adequately meeting all of the child's needs. At this stage there is still much information that needs to be investigated. Adding the paternal grandmother as a party will allow the court, to at a minimum, permit her to seek access which in all of the circumstances may be in the child's best interest.

[20] I do not consider the issue of a potential delay to be concerning at this very early stage of these proceedings. The paternal grandmother has already shown herself, despite being unrepresented, to have the ability to file pleadings in a timely fashion. She did not request that the temporary care and custody hearing be delayed for her motion once she became aware that the society was not seeking to remove the child from the care of the mother. As I will be the case management judge any issue of unduly delay can be managed and dealt with by me.

[21] I have also considered that the power to add a party to a proceeding should be used sparingly and only where necessary. Further, the order should only be made where the case cannot be disposed of fairly and justly unless the proposed party has the chance of being heard by the court in a way to advance her claim. In this case, other than adding the paternal grandmother as a party I do not see any other way to put her claim effectively and fully before the court. Therefore, I find that it is necessary to add the paternal grandmother as a party to consider her claim for access and possibly for care and custody of the child.

[22] In considering if the paternal grandmother is capable of putting forward a plan that is in the child's best interest, at this stage of the proceedings, the paternal grandmother's claim for the child to be placed with her is not particularly realistic especially in light of the fact that the society is only seeking a 7 month supervision order with the child remaining in the care of his mother. However, her claim for access is realistic and may even relieve some of the stress on the mother in view of L.J.Z.'s behavioural problems and the fact that the mother is expecting another child. The paternal grandmother, if the society's position should change over the course of this proceeding, is certainly able to formulate and present a viable plan for L.J.Z. to reside with her. Since the proceeding commenced further concerns have arisen about possible risk of emotional harm to the child and about the mother's ability to work with the society to alleviate such risks, it may be prudent for an alternative plan to be before the court in the event a more intrusive order is sought by the society. In any event, adding the paternal grandmother as a party will enable the court to consider her request for access that is opposed by the mother and step father.

Order

[23] Order as follows:

1. Z.B.H. is added as a party to these proceedings.

2. Z.B.H. is granted leave to serve and file her answer and plan of care by May 10, 2012.

3. Z.B.H. is granted leave to bring a motion for access to L.J.Z. on a date agreeable to all parties and the court.

Justice R. Zisman

Date: April 19, 2012