WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult.

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.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (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 Information

Ontario Court of Justice

Date: June 20, 2014

Court File No.: Toronto CFO 13 10434 B1

Parties

Between:

Children's Aid Society of Toronto, Applicant

— AND —

K.A. and M.K., Respondents

Before

Justice E.B. Murray

Motion argued on: June 16, 2014

Reasons for decision released on: June 20, 2014

Counsel

• Ms. Donna Gray — counsel for the applicant society
• Ms. Archana Medhekar — counsel for the respondent mother
• Mr. Dilani Gunarajah — counsel for the respondent father
• Mr. John P. Schuman — counsel for J.H. (Grandfather)
• Ms. Sheila C. MacKinnon — counsel for the Office of the Children's Lawyer, legal representative for Z.T.

DECISION

MURRAY, E.B. J.:

Introduction

[1] The subject of this case is a 15½ year old girl, Z.T. Z. has been in the temporary care of the Society for a year in a proceeding which commenced after Z.'s mother was charged with assaulting her. Mother has since pleaded guilty to this charge. No finding has been made, but the parties assure me that finding is not in issue, and that they are attempting to reach agreement on the facts that will form the basis for the finding. Z.'s maternal grandfather, J.H., seeks to be named a party to this proceeding, or, in the alternative, to have specified rights to participate in the proceeding. Z.'s parents support his request; the Society and Z., through her lawyer, opposed.

Background

[2] Based on Z.'s disclosures, the Society alleges that Mother physically and emotionally abused the child over a lengthy period of time, and that Father failed to protect her. Z. has consistently refused to see Mother. After two meetings with her father shortly after she came in to care, Z. refused to see him, until she agreed to a visit in January 2014 at the Society's offices. The evidence is that Z. found this last contact traumatic, and she has refused to see Father again. Although Z. on one occasion agreed to see her 4-year old brother S., who is living with the parents, after one visit she quickly changed her mind.

[3] Z. has had a difficult time in care. The Society has had her assessed by a psychiatrist, and tried to get the child to start counselling at BOOST. Z. went to the introduction meeting, but said that she did not need counselling. Z. has started to drink alcohol, and smoke marijuana. She has stopped going to school. She has been hospitalized briefly after an emotional breakdown in which she expressed suicidal thoughts. Z. ran away from her foster home more than once. The Society moved her to a group home, in an attempt to better manage her behaviour. In April 2014, Z. AWOL'ed from the group home twice, for several days.

[4] The Society is attempting to stabilize Z., and says that there is some sign that this is taking place. Z. has started art therapy. She is taking the medication prescribed for her by the Society's doctor. She has stayed in her group home for the past two months.

Plans Proposed for Z.

[5] The Society's plan of care of November 2013 asked (after a finding is made) for a six month order of the Society wardship. The plan contemplated that Z. would complete therapy at BOOST, that the family would "work on the issues that led to Z.'s admission to the Society care", and that, when Z. wished access to her parents, that the Society would facilitate this access, with a view to family reunification after a reasonable period of successful access.

[6] The parents' plans of care, filed in September 2013, proposed that Z. would return home when she wished and when the orders in Mother's criminal proceeding permitted, and, in the alternative, that Z. be placed with a relative of Father's in Brampton. Z. rejected these plans.

[7] Mr. H., distressed at his granddaughter's plight, came from Bangladesh to Toronto in March 2014, intending to see her and to present a plan for her care. His evidence is that he and Z. were very close prior to her family's immigration to Canada 6 years ago. They lived in the same home, and he was involved in her care on a daily basis.

[8] Since Mr. H. came to Canada, Z. has seen him twice, once in the context of his attendance at her citizenship ceremony, and another time at a visit arranged by the Society. Although Z. initially stated through her lawyer that she was prepared to see her grandfather for visits, she quickly changed her mind and is refusing contact. Mr. H. finds this refusal puzzling, since he observed no distress on her part in their two meetings and says that the child was clearly very happy to spend time with him.

[9] Mr. H. filed a draft plan of care which seeks a s. 57.1 order placing the child in his care, or, in the alternative, an order of Crown wardship. In his affidavit, Mr. H. says that he "does not approve" of his daughter's behaviour with respect to Z. He has established a separate residence in an apartment that is not close to the parents' home, and proposes that Z. live with him there. He deposes that he will insure that she not have contact with her parents, unless she wants to. Mr. H. says that placement of Z. with him will allow her to reconnect with her religion and cultural heritage, but he assures the court that he would not compel the child to engage in any religious or cultural practices against her will.

[10] Mr. H. acknowledges that Z. needs counselling, and plans to facilitate her getting this counselling through culturally appropriate resources. He sees this counselling as a prelude to Z. taking up residence with him. He has consulted with Mr. Towhid Noman, a leader in the Bangladeshi community here, to assist him in obtaining services for Z. Mr. Noman deposes in an affidavit that he is even willing to help out by caring for Z. himself when Mr. H. "needs a break".

[11] Mr. H. hopes that because of his special relationship with Z. that he will succeed in getting her to stabilize and get the help she needs.

[12] Mr. H. says that he is worried that no one has given sufficient thought to permanency planning for Z. He is afraid that if she does not make progress in Society care before she reaches the age of 16, that the Society will wash its hands of her by withdrawing their application, and that she will simply be on the streets without supports. He says that his plan is unique, in that it contemplates the need for an order of Crown wardship if no family or community plans are acceptable.

The Law

[13] Rule 7(5) of the Family Law Rules provides that the court may order that any person who should be added as a party shall be so designated. The court, thus, has a discretion to exercise in determining whether to add a party to a case.

[14] In Children's Aid Society of London-Middlesex v. H. (S.), (2002), O.J. 4491 (Sup. Ct.), Justice Grant Campbell set out principles which should be considered before a court adds a party to a child protection proceeding:

I am satisfied that the principles used to add grandparents under the former rules continue to apply. In summary, then, I find that I must consider the following principles before adding a party to a child protection hearing:

• (i) whether the addition of the party is in the best interests of the child,
• (ii) whether the addition of the party will delay or prolong proceedings unduly,
• (iii) whether the addition of the party is necessary to determine the issues, and
• (iv) whether the additional party is capable of putting forward a plan that is in the best interests of the child.

In Children's Aid Society of London and Middlesex v. J.P., supra, Justice Marshman sets out an additional prerequisite for those persons seeking to be added as parties (my emphasis added):

• ... It seems to me that a person should not be added as a party in child welfare proceedings unless that person has a legal interest in the proceedings, i.e., an order can be made in their favour or against them. If rule 7(5) is intended to give the court broad discretion to add parties who have no legal interest in the issues before the court, then that discretion ought be exercised very sparingly. Family court cases would become unwieldy if courts exercise a broad discretion to add parties who have an interest in the outcome but who are not legally affected thereby.

Consequently, in addition to the foregoing list of principles, I must also consider whether the person seeking to be added as a party has a legal interest in the proceedings.

[15] Justice Campbell was dealing with a motion by grandparents to be added as parties in a case in which the Society sought an order of Crown wardship for two children, aged four and nine months. The motion was opposed by the Society and by Mother, who was consenting to the order of Crown wardship. The children's fathers were not participating in the proceeding. Justice Campbell ordered that the grandparents be added as parties, stating that he "placed significant weight on subsection 57(4)" of the Act, which requires a court to consider the possibility that placement with a relative or extended family member is the least restrictive alternative available that is in the child's best interests.

There is further guidance in the caselaw on the application of the principles set out above:

• It is not to be expected that a person requesting party status establish that his plan will be successful, only that it merits examination at trial.[1]

• A person who is to be successful on a motion to be added as a party is not required to satisfy all five of the criteria set out above; those criteria are simply factors which a court should consider in exercising its discretion.[2]

Analysis

[16] There are many protection cases in which grandparents who have a plan that is arguably in a child's best interests have been made parties. In all the cases provided to me, the subject children were very young, too young for any views and preferences to be expressed or, if expressed, to be seriously considered by a court in determining their placement.[3]

[17] Mr. H. wishes to offer a plan that is carefully thought out and attempts to address what he sees as Z.'s best interests. He has a legal interest in the case, in that an order could be made in his favour. However, it appears to be clear at this point that Z. does not wish to live with him; having had two contacts, she will not even agree to see him.

[18] Z. is 15½ years old. One important factor in the determination of a child's best interests for a child this age is her views and preferences.[4] It is unlikely that a court would make an order providing that a child of this age be placed in the care of a person despite that child's clear rejection of the placement. At a practical level, everyone acknowledges that even if such an order were made, that enforcement would be problematic. These factors lead me to question whether the plan put forward by Mr. H. can be said to be in the best interests of this child, in that it is unlikely to be a viable plan.

[19] Z.'s views on contact with her grandfather have remained consistent over the past three months. I will not rule out the possibility that the child, if she receives more information about Mr. H.'s plan may, after the passage of time, give the plan further consideration. The Society has declined to investigate Mr. H.'s plan because it has been rejected by Z. It would be helpful to the court and perhaps to Z. to have his plan assessed, and I order that this assessment take place.

[20] However, it is my view that it is unnecessary to add Mr. H. as a party or to grant him any of the rights of a party to have the plan put before the court.

[21] Both Mother and Father are represented by able lawyers, and they both support Mr. H.'s plan to have Z. placed with him. They can advance the plan, with Mr. H. as a witness. They can share with him any disclosure they receive. This is not a situation such as that faced by Justice Sherr in [Children's Aid Society of Toronto v. T. (M.)].[5] In that case, Justice Sherr added the grandparents as parties because, although Mother at that point was supporting their plan for the child, because of their volatile relationship it was quite possible that by trial she would not support them and would not present the plan. Justice Sherr found that it was necessary to add the grandparents as parties to insure that their plan would be before the court. In the instant case, there is no history of a volatile relationship between Mr. H. and the parents.

[22] Mr. H.'s lawyer argues that his alternative plan - Crown wardship—is currently not in any other plan before the court, and that this justifies his addition as a party. I see little merit in this argument. I have no doubt that if the Society finds that it cannot recommend placement of Z. with her parents or a member of her extended family within the statutory timelines that, keeping in mind its obligation to seek a permanent plan for the child, the agency will amend to seek Crown wardship. The service team appears to be quite concerned about Z., and there is no talk of attempting to withdraw if she continues to be a difficult child to serve. In any event, if the Society attempted to withdraw, it would require the leave of the court to do so.

[23] The only result of adding grandfather as a party at this time would be that there would be three lawyers instead of two seeking discovery, examining and cross-examining, and making submissions in any trial which is to take place. That would prolong this proceeding unduly.

[24] For these reasons, I dismiss Mr. H.'s motion.

Released: June 20, 2014

Signed: Justice E.B. Murray

Footnotes

[1] Children's Aid Society of Toronto v. T. (M.), 2012 ONCJ 786

[2] Children's Aid Society of Algoma v. C.V., 2011 ONCJ 83

[3] Besides the cases referred to in the text of this decision, counsel referred to Children's Aid Society of Peel (Region) v. A. (M.), 2009 ONCJ 348; Catholic Children's Aid Society of Toronto v. R.D.S.deL. and A.S.; and Children's Aid Society of Peel (Region) v. G.(K.), 2012 ONCJ 249

[4] Child and Family Services Act, s. 37(3)(9)

[5] See note 1