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
Court File No.: Sault Ste. Marie 228/14
Date: 2015-08-18
Between:
Children's Aid Society of Algoma Applicant
— AND —
K.R. Respondent
— AND —
D.G. Respondent
— AND —
R.J.H. Respondent
Before: Justice R. Kwolek
Heard on: July 21, 2015
Reasons for Judgment released on: August 18, 2015
Counsel
- Children's Aid Society of Algoma: John Rossi
- K.R.: Lynn Tegosh
- D.G.: Kristi Whitfield
- R.J.H.: Eric McCooeye
KWOLEK J.:
Summary
[1] The Children's Aid Society has brought motions:
to remove R.J.H. as a party to these proceedings and to terminate any outstanding orders in his favor; and
to add D.N. as a party to these proceedings as, through DNA testing, he has now been found to be the biological father of the child A.R. born the […] of January 2009. The society is also seeking an order that the father D.N. have no access to the child.
[2] R.J.H. was initially named as a party in the proceedings as the father of the child A.R., but through DNA testing has been found not to be the biological father of the said child A.R.
Statutory Framework
[3] Section 39 of the Child and Family Services Act sets out who must be named as a party in child protection proceedings. That section reads as follows:
39. (1) The following are parties to a proceeding under this Part:
- The applicant.
- The society having jurisdiction in the matter.
- The child's parent.
- Where the child is an Indian or a native person, a representative chosen by the child's band or native community.
[4] The definition of parent, that applies in these child protection proceedings is set out under section 37(1) of the Child and Family Services Act, which section reads as follows:
"A parent", when used in reference to a child, means each of,
(a) the child's mother,
(b) an individual described in one of paragraphs 1 to 6 of subsection 8 (1) of the Children's Law Reform Act, unless it is proved on a balance of probabilities that he is not the child's natural father,
(c) the individual having lawful custody of the child,
(d) an individual who, during the twelve months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of his or her family, or has acknowledged parentage of the child and provided for the child's support,
(e) an individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child, and
(f) an individual who has acknowledged parentage of the child in writing under section 12 of the Children's Law Reform Act,
but does not include a foster parent.
[5] In addition to the statutory provisions regarding who shall be named as a party in a child protection proceeding under the Child and Family Services Act, Rule 7(5) of the Family Law Rules allows the court to order that any person who should be a party to be added as a party, and may give directions for service on that person.
Analysis: R.J.H. as a Party
[6] R.J.H. did file an affidavit setting out that he had always believed he was the father of the said child and treated him as his son. He also alleges that he has always intended on being a father to the child. He describes the visits that he has had with the child even when he resided in St. Catharines. He claims that the child believes, to Mr. R.J.H.'s knowledge, and has always believed, that Mr. R.J.H. was his father. He also indicated he has always thought of the child as a part of his family and acknowledged him as his own child. Although he has now been found not to be the biological father of the child, Mr. R.J.H. still considers himself A.R.'s father and still proposes a plan to care for the child.
[7] Given the above uncontradicted evidence, I find that pursuant to section 37(1)(d) of the Child and Family Services Act, Mr. R.J.H. is an individual who, during the 12 months before intervention, and in fact for many years prior, had demonstrated a settled intention to treat the child as a child of his or her family. As a result, I find that Mr. R.J.H. is a parent to the child, and pursuant to s. 39(1)(3) of the Child and Family Services Act is, and should continue to be, a statutory party to the proceedings.
Analysis: D.N. as a Party
[8] As a result, as indicated in my oral Reasons, I dismissed the motion of the Children's Aid Society to remove R.J.H. as a party, but reserved the right to provide further written reasons. On July 21, 2015, I reserved my decision on the motion brought by the Society to add D.N. as a party. The motion to add Mr. D.N. was opposed by counsel for Mr. R.J.H. It is clear from the paternity testing that Mr. D.N. at least cooperated to the extent that he provided a DNA sample sufficient to test whether or not he was the biological father of the child A.R. We also know that the mother had earlier indicated the possibility that D.N. may be the biological father of the child.
[9] The Society has had extensive involvement with D.N. as a child. Mr. D.N., who is currently 20 years of age, also has had recent involvement with the criminal justice system involving alleged crimes of violence involving a firearm and is currently incarcerated at the Algoma Treatment and Remand Centre.
[10] D.N. has not filed any documentation in this proceeding. However, it is likely that he has not been served with any of the documentation as he is not currently a party to these proceedings. We do not know if he takes any issue with any of the allegations made against him.
[11] Based on the current evidence before me, it appears that D.N. does not fall into any of the presumptions of parentage set out in paragraphs 1 through 5 of section 8 of the Children's Law Reform Act.
[12] There is no evidence before me that D.N. falls within any of the categories set out in paragraphs 37(1)(c) to (f) of the Child and Family Services Act.
[13] Section 137(1) of the Child and Family Services Act also provides a definition of a parent in the section dealing with individuals who are required to consent to an adoption.
[14] Section 137(1)(b) describes as a parent: "an individual described in one of paragraph 1 to 6 of subsection 8(1) of the Children's Law Reform Act, unless it is proved on a balance of probabilities that he is not the child's natural father".
[15] Section 8 paragraph 6, of the Children's Law Reform Act, states: "there is a presumption that a male person is and shall be recognized in law to be, the father of the child if the person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child."
[16] In the circumstances of this particular case, given that the individual has submitted to DNA testing and affidavit evidence has been provided confirming that there was an opportunity for him to be the father, and he has in fact been virtually proven by DNA testing to be biological father of the child, I do hereby find and recognize D.N., within the context of these proceedings, to be the biological or natural father of the child A.R. As a result, D.N., following my finding, would then fall under the definition of a parent pursuant to section 8 paragraph 6 of the Children's Law Reform Act, and section 37(1)(b) of the Child and Family Services Act.
[17] In this case, where there are court proceedings that have not been completed and the child continues to be in the temporary care and custody of the Children's Aid Society, it certainly appears consistent with the legislative framework, and in the interests of justice, that the said biological father D.N. should be added as a party to these proceedings, as the Society has requested. Procedural fairness demands such a result. Given my findings above, I shall add D.N. as a party. It is another issue entirely, once he has been added as a statutory party, whether or not he should be granted any access to, or custody of, the child.
Directions
[18] The application has already been set for a combination conference on October 27, 2015. D.N. should be served by the Children's Aid Society with all the documentation in the continuing record as soon as possible to determine whether or not he wishes to take part in the proceedings by filing an answer and plan of care.
Released: August 18, 2015
Signed: "Justice R. Kwolek"