Court File and Parties
Court File No.: FO-12-0000499-00A1 Date: 2015-06-03 Ontario Court of Justice
Between:
WINDSOR-ESSEX CHILDREN'S AID SOCIETY Ronald Burnett, for the Applicant
— AND —
D.L.H. and G.J.P.J. Paul Mingay, for the Respondent Mother Courtney Rubin, for the Respondent Father
— AND —
L.A.F. Tamara Stomp, for the Moving Party
Child's Counsel: Lisa Labute
Heard: May 11, 2015
Endorsement
Tobin J.:
Motion to Add Party and Request for Relief
[1] L.A.F. asks to be added to this proceeding as a party respondent. In addition (and presumably in the alternative) she requests the relief found at the [Child and Family Services Act, s. 39(3)][1], and that she be provided with a copy of a Parent Capacity Assessment Report prepared by Dr. Ricciardi.
[2] Counsel for the child appointed by the Children's Lawyer supports Ms. F.'s request.
[3] The request is opposed by the Society and the respondents D.L.H. and G.J.P.J. Neither the Society nor the respondent mother filed evidence on this motion.
Background
[4] This motion is brought within a child protection application that concerns G.J.P.J., Jr., born …, 2013 (the "child"), who was apprehended at birth. The respondents are the mother and father of the child.
[5] On April 26, 2013, the child was placed in the care of the Society on a without prejudice basis by order of Bondy J. By order of Phillips J., dated July 11, 2013, the prior order was continued pending trial or further order of the court. The child remains in the care of the Society pursuant to s. 51 of the Act.
[6] When the child was 12 days old he was placed in the care of Ms. F. who resides with her fiancé C.D.A.M. and has remained there since.
[7] The Society and the parents have reached an agreement in principle which would see the child, along with three of his siblings,[2] placed in the care of the parents, subject to Society supervision. A Statement of Agreed Facts is expected to be filed shortly with respect to the cases pertaining to all the children. These cases are on the trial list.
[8] Ms. F. was kept apprised of this court proceeding by a Society worker and is most concerned that the agreement reached by the Society and parents may not be in the child's best interests.
Child's Special Needs and Concerns
[9] The child has special needs having been diagnosed with hydrocephalus, which can cause headaches and thus pain and discomfort. The child has poor coordination and care needs to be taken to ensure he does not hurt his head should he fall or bump into objects.
[10] Ms. F. is concerned the respondents do not have the ability to meet the child's special needs. In her affidavit, she describes instances where the respondents have not adequately cared for the child: not accepting a medical diagnosis, not providing consumable breast milk, using scented products when requested not to, not following the pattern of care employed by Ms. F., the child's primary caregiver, and on one occasion strapping the child's car seat in too tight a manner.
[11] Ms. F. questions whether the facts relied upon by the Parenting Capacity Assessor were correct or complete as she has not seen it.
[12] Finally, she raises concerns about risk to the child should he be placed in the care of the respondents because of: historical domestic conflict between them; the respondent father's criminal history; the respondents' lack of knowledge on how to deal with the child's predisposition to aggressive behaviours and their ability to manage the needs of the child along with their three other children.
[13] Ms. F. wants to be able to file an Answer and Plan of Care wherein she would seek an order the child be made a ward of the Crown without access to the respondents. Supported by her fiancé, C.M., she wants to present a plan for the child to be placed in her care.
Kinship Care Status
[14] Ms. F. and Mr. M were approved as kinship care providers for the child and subsequently entered into a kinship care service agreement with the Society, with the current agreement set to expire June 28, 2015.
[15] Ms. Stomp argues that because Ms. F. and Mr. M. are community members who have come forward to care for the child they are not foster parents as that term is defined in the Act. She submits they are "kinship parents." They provide "kinship care" not "foster care."
[16] With respect, I do not accept this argument.
[17] The term foster parent is defined at s. 3 of the Act as follows:
"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 VII,
and "foster home" and "foster parent" have corresponding meanings;
[18] The Act does not define "kinship care" or "kinship parent."
[19] The service Ms. F. and Mr. M. provide is care for the child as does a foster parent.
[20] Before a child is placed with them as a member of the child's extended family or community, the Society is required to conduct an evaluation of the plan for the care of the child: See O. Reg. 206/00, Procedures, Practices and Standards of Service for Child Protection Cases, Part II, s. 7.
[21] The kinship care service agreement entered into by Ms. F. and Mr. M. with the Society provides that where applicable the Society is required to inform them which expenditures are reimbursable by the Society as well as the basic board rate for the child in their home. A foster parent, by definition, is one who receives compensation for caring for a child.
[22] There is no evidence that the child has been placed in the care of Ms. F. for adoption under Part VII.
[23] I find that the kinship in-care placement with Ms. F. and Mr. M. is akin to a foster care placement provided by a member of the child's community. Accordingly, the provisions in the Act, Rules and case law pertaining to foster parents being added as parties apply to Ms. F.
Legal Framework for Foster Parent Participation
[24] Foster parents are not parties to a child protection proceeding unless they are added as parties pursuant to a court order: See C.F.S.A., ss. 39(1) and Family Law Rules 7(4) and (5).
[25] In [L.(R.) v. Children's Aid Society of Niagara Region (2002), 34 R.F.L. (5th) 44 (Ont. C.A.)][1], the court had this to say about foster parents at para. 38:
[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] O.J. No. 1384 (Prov. Div. Ct.)][2]:
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.
[26] I am also mindful that when determining the appropriate disposition for a child, the court must have regard to what is in the child's best interests. To do so, it must have all available and relevant evidence. A foster parent who has cared for a child continuously during the six months immediately before the hearing is entitled to notice of the proceeding, be present at the proceeding, be represented by a solicitor and may make submissions to the court. The court has discretion to allow a foster parent to have enhanced participation, including that he or she be a party.[3]
Court's Decision
[27] On this motion, Ms. F. has put forward evidence which may factor in a determination of the best interests of the child. On the record before me, I have no information as to whether these concerns were taken into account by the parties in reaching their proposed settlement. I am satisfied that a court should be made aware of the concerns raised by Ms. F. in the context of the proposed settlement. I am also mindful that if Ms. F. and Mr. M. are made parties, there will be a further delay in the resolution of this matter.
[28] In balancing all of these considerations, I am satisfied the court should hear from Ms. F. before deciding the basis for finding the child is in need of protection and what disposition may be in the child's best interests. This can be accomplished by allowing Ms. F. enhanced rights of participation.
[29] In addition to the rights of participation afforded Ms. F. by ss. 39(3) of the C.F.S.A., she shall be entitled to the following:
Disclosure of the Dr. Ricciardi Parenting Capacity Assessment.
Disclosure of the Statement of Agreed Facts the Society and respondents intend to file.
The ability to participate with the assistance of counsel at a combined settlement conference and trial management conference which is to be expedited by the trial co-ordinator's office.
[30] Subject to the direction of the trial judge, the case management judge shall determine how Ms. F. may participate at the hearing (whether it proceeds by summary judgment or otherwise) including a consideration of the procedural orders which a court may make pursuant to subrule 1(7.2) of the Family Law Rules.
Released: June 3, 2015
Barry M. Tobin Justice
Footnotes
[1] The Child and Family Services Act, s. 39(3) provides as follows:
39(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 solicitor; and
(d) may make submissions to the court,
but shall take no further part in the hearing without leave of the court.
[2] One child protection application concerns the children H.J., born …, 2005, and J.J., born …, 2006. Another child protection application concerns the child M.J.G.J., born …, 2014.
[3] See Footnote No. 1 above.