WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Sault Ste. Marie Court File No.: 217/2011 Date: 2012-04-23

Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

Children's Aid Society of Algoma Anthony Marrato, for CAS

— And —

T.S. Trevor Simpson, for T.S. (mother)

A.M. Kristi Whitfield, for A.M. (father)

Heard: April 8, 2012

Before: Justice John Kukurin

Decision

[1] Introduction

This is a decision on a motion (at Tab 7) brought in this child protection case by the maternal grandfather of the child D.P.S., who recently turned one year old. The grandfather asks for an order adding him as a party respondent in this case. The child's mother supports his request. The father and the society oppose it.

[2] Basis for the Grandfather's Claim

The basis for the grandfather's claim is twofold. Firstly, he claims that he is statutorily required to be a party in this case. Secondly, he claims that he should be added as a party pursuant to the Family Law Rules that apply to this proceeding.

Statutory Party Status

[3] Governing Legislation

Child protection cases are governed by the Child and Family Services Act (CFSA). Part III of this statute contains not only substantive provisions, but also very comprehensive procedural provisions that apply to such cases.

[4] Definition of "Parent" Under the CFSA

Section 39(1) of the statute sets out who are the parties in a child protection case. Paragraph 3 of this subsection specifies the child's "parent" to be a party. The maternal grandfather claims that he is a "parent" of the child.

[5] Statutory Definition vs. Ordinary Understanding

Although the ordinary understanding of the word "parent" is a child's biological mother and biological father, this is not the meaning that the word "parent" has for purposes of Part III of the CFSA. In fact, there is a lengthy and comprehensive definition of who is a "parent" for purposes of child protection proceedings contained in s.37(1) of the CFSA.

[6] Breadth of the Definition

The section 37(1) definition includes numerous categories of parenthood in relation to a child for purposes of child protection cases. While a child's mother is always a parent, a child's biological father is not necessarily so. And sometimes, a biological father is a parent, even though his only connection to the child is limited to sperm donor prior to conception.

[7] The Grandfather's Claim

In this case, the maternal grandfather claims to be a statutory parent under paragraph (e) of the definition of "parent" in s.37(1) CFSA. He maintains that he is an individual who, under a written agreement, has custody of the child D.P.S.

[8] The Written Agreement

A copy of this written agreement is included in the evidence at Tab 8 (as Exhibit A). It is signed by both the mother and the father. It is also signed by a witness, Marla Boissoneau, and all signatures are dated August 15, 2011. The text of the agreement is brief:

"We, T.S. and A.M. give full custody of our son to T.S.'s dad I.S. to take care and control of our son D.P.S. so we both can continue to work and support him to what he might need."

[9] Notarization

In addition, there is a notation on the document by F. Frederick Baxter, in his capacity as a Notary Public for Ontario, that he is a witness to all signatures on the document.

[10] Timeline and Living Arrangements

The child D.P.S. was born [...], 2011. The Agreement is dated August 15, 2011. The society apprehended D.P.S. on October 20, 2011. Except for two short periods when D.P.S. was in hospital, he had lived continuously in the home of the maternal grandfather. So also did the mother and the father, until sometime after the apprehension, when the father left the maternal grandfather's home.

[11] Society's Prior Knowledge

The society had been involved with the mother, father and maternal grandfather even prior to D.P.S.'s birth and has remained involved continuously to date. It was certainly aware of the grandfather's role as caregiver to the child in this family. In its own evidence, it acknowledges that as early as April 29, 2011, the child protection worker of the society had informed the Sault Area Hospital Nurse "that the maternal grandfather, I.S., appeared to be the primary caregiver...".

[12] Grandfather's Stated Intentions

The society's evidence also confirms that as of July 26, 2011, the maternal grandfather had advised the society at a case conference held at the society's office, that he "was committed to caring for the child and will be seeking custody".

[13] Grandfather's Communication to Society

Its evidence also confirms that on August 16, 2012, at a meeting with a worker at the society's office, the maternal grandfather had informed the worker that "the parents had signed over custody of the child, and that the maternal grandfather has gotten the Agreement notarized by a lawyer".

[14] Society's Argument Regarding the Agreement

The society argues that the grandfather does not qualify as a "parent" under this definition in the statute because the document which he has provided as proof of his having custody is not an "agreement". The society does not say precisely what it thinks this document is, but it is adamant that it is not an "agreement". An agreement, it asserts, must be signed by all of the parties to the agreement, and this one is not. It was not signed by the other party. I presume that the society intimates that the other party is the maternal grandfather.

[15] Rejection of Society's Argument

I reject this argument completely. The word "agreement" is not, as counsel for the society pointed out, defined in either the CFSA or in the Family Law Rules. There is no statutory provision that the written document referred to in paragraph (e) of the definition of parent in s.37(1) of the statute requires the signature of the person to whom custody is being transferred. In this case, it is abundantly clear that the grandfather was consenting to the transfer of custody to himself by the parents. In fact, I infer from the evidence of the father that it was the maternal grandfather who drafted the agreement, and arranged for the parents to sign it.

[16] Meaning of "Agreement"

"Agreement" is a somewhat generic term. Thesaurus equivalents include the words "understanding, contract, bargain, deal, covenant, pact, arrangement, and accord". While contract law may require the signature of all parties on a written contract, there are other types of agreements that clearly do not. There are many "agreements" that are signed by only one "side". In our criminal law, for example, bail release documents such as the "Promise to Appear" are often signed only by the accused person. Even the simple "I.O.U." is typically signed by only one side. Are these not "agreements"? There are some that would also argue that the Almighty's unilateral covenant with Moses on behalf of the Israelites on Mount Sinai is also an agreement.

[17] Methods of Transferring Custodial Rights

There are many ways in which custodial rights can be transferred by one individual to another. Some of these pre-dated the Child and Family Services Act, the Children's Law Reform Act and the Family Law Act. Some may even have pre-dated the advent of writing. I do not interpret the words "written agreement" in s.37(1) paragraph (e) under the definition of "parent" to refer necessarily to a "domestic contract", as that term is defined under the Family Law Act, nor to any specific type of domestic contract included in that statute. While transfers of custody can, and often are, effected by contracts, and in particular, by domestic contracts, nowhere to my knowledge, does the law create any exclusivity as to how transfers of custodial rights can take place.

[18] Father's Changed Position

The father is no longer in the home of the grandfather and the mother. It is unclear whether he left of his own accord, at the invitation of the mother and grandfather, or at their insistence. In any event, he has amended his Answer in this case. He has made a 180 degree turnaround in his position. Initially, while still within the household, he sought placement of the child with the grandfather, and, in the alternative, with the mother. At that point, the child had been apprehended and the father was represented by his own counsel. After leaving the home, his claim changed dramatically. His present claim is for society wardship, or in the alternative, custody in his favour, or in the further alternative, placement with himself with a supervision order. Of significance is the absence of any mention of the "written agreement" in his first Answer. It is also not mentioned in his Amended Answer. It is, however, mentioned in his affidavit filed only after the motion of the maternal grandfather for party status was brought. His reference to this document is that he "felt coerced into signing the letter". He does not go so far as to say that the grandfather or the mother coerced him into signing. He does not allege that the document is invalid. He also refers to the document as a "letter". In my view, this document is much more of an agreement than it is a letter. Letters are not typically witnessed and notarized.

[19] Omission of Proper Statutory Parties

A child protection application is invariably prepared by the applicant society. Who it names as a respondent is its decision. However, its decision is required to be made in accordance with the CFSA, the governing statute with respect to procedure. It must name as respondents all persons that the statute states are parties in the case. Sometimes, a proper respondent's name is missed. This may be due to inadvertence. It may be due to inadequate information on the part of the society, or perhaps having the wrong information. Sometimes, a respondent emerges later in the case by reason of certain subsequent happenings. In these cases, the court can, by order, add the respondent's name to the name of the proceeding and give directions with respect to service and further participation.

[20] Society's Interpretation of Facts

There are other situations where the society names party respondents based on what is its interpretation of the facts, or of the statutory requirements relating to who are parties, or both. Since the society is the applicant, and the only party that initially names the parties in the case, subsequent change to the named parties has to come from somewhere. This could be as a result of steps taken by the society itself, or by one of the already named parties, or, as in this case, by the person who claims he is a proper statutory party but not named as a respondent.

[21] Significance of Omitting a Proper Statutory Party

The omission of a proper statutory party in a child protection case is not insignificant. The CFSA is one of the few statutes that make provision for procedure in child protection cases right in the statute itself. This is important. Very few, if any, statutes have codified the determination of who is a proper party in a proceeding brought pursuant to those statutes.

[22] Circumstances of Apprehension

D.P.S. was apprehended on October 20, 2012. The society's evidence is completely devoid of any details relating to what happened at this apprehension. What seems to have precipitated the apprehension is a telephone call to the society worker from the paediatrician who saw D.P.S. in his office that same day. The telephone call conveyed concern about the child's weight loss and expressed the feeling of the physician that the child either needed alternate care or needed to be admitted to the hospital. There is no indication in the evidence that a warrant of apprehension was obtained or even sought by the society. It is not even known whose care the child was in when apprehended by the society. However, the father had already relocated by then. Accordingly, the child was with either the maternal grandfather, or the mother, or both of them. The mother had already transferred care and control to the maternal grandfather over two months earlier. It seems a logical inference that the grandfather had "charge" of the child immediately prior to apprehension.

[23] Return of Child if Not in Need of Protection

This leads to some consequences. Firstly, if the society fails to satisfy the court that D.P.S. is a child in need of protection, he must be returned to the person who had charge of him immediately prior to the society's intervention (ie apprehension). This appears to be the grandfather.

[24] Temporary Care and Custody Requirements

Secondly, for purposes of temporary care and custody, there is a requirement that an apprehended child must be returned to the person who had charge immediately prior to the society's intervention unless the society satisfies both parts of a two part test in s.51(3) CFSA. This would appear to be the grandfather in this case. Moreover, in attempting to satisfy this two part test, the evidence of the society with respect to risk of likely harm, and also with respect to whether a court order could adequately protect the child, would have to be considered principally in relation to the grandfather.

[25] Focus of Protection Proceedings

Thirdly, this child protection case relies on a number of grounds for a finding that the child is in need of protection. While the statement of these grounds does not specifically mention the person or persons who caused D.P.S. physical harm, or because of whom, D.P.S. is at risk of likely physical harm, a reasonable inference is that the society was identifying the mother and the father as these persons. However, both clause (a) and clause (b) of s.37(2) CFSA refer to the person having "charge" as the source of actual or prospective physical harms. If the grandfather had charge, then the contest is not so much between the society and the biological parents as it is between the society and the grandfather. This would, of course, change the entire landscape of this litigation. It would likely also require much different evidence than would be the case if the society's main adversaries were the mother and the father.

[26] Finding on Statutory Party Status

The evidence filed to date satisfies me that the maternal grandfather qualifies under the definition of "parent" in s.37(1) paragraph (e) CFSA and consequently, he is a statutory party in this child protection case.

[27] Alternative Basis for Party Status

I would also find him to be a "parent" under the definition of "parent" in s.37(1) paragraph(c). Lawful custody is not equivalent to "legal custody" in the sense that custody has to be awarded by way of a court order.

[28] Nature of Grandfather's Involvement

The net created legislatively for "parents" in child protection proceedings catches many different individuals. Sometimes, these persons have quite tenuous ties to the child. The maternal grandfather, in this case, has been involved with the parents before the child D.P.S. was even born, has been an integral part of D.P.S.'s family since birth, has taken on a caregiving role to the child that transcends the traditionally understood grandparental role, and has gone so far as to take steps to acquire custodial status for himself.

[29] Order

In summary, he should have been named as a respondent by the society in its application. I propose to make an order that he be added as a party respondent, that he be served by the society with a copy of all documents filed to date in the continuing record, and that he have thirty days from date of service to file an Answer and Plan of Care.

Party Status Under the Family Law Rules

[30] Alternative Basis for Party Status

As I have found the maternal grandfather to be a proper statutory party under the CFSA statute, whether he has or should have party status by being added as a party under the Family Law Rules is moot. Had this determination been required, however, I would have added him as a party. He would clearly be a party pursuant to clause (2) of subrule 7(4) of the Family Law Rules. Moreover, I would have added him, on the present evidence, pursuant to subrule 7(3)(b)(ii) and subrule 7(5) as well. I cannot understand how this case could possibly proceed with the grandfather not participating as a party. If anyone should be a party, it should be he.

Released: April 23, 2012

Justice John Kukurin, Ontario Court of Justice