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 one or more of subsections 45(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:
[1] . . .
[2] (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.
45.— (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.
45.— (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
Court File No.: C90801/16
Date: 2016-06-29
Ontario Court of Justice
Parties
Between:
Children's Aid Society of Toronto
Sherri Smolkin, for the Applicant
Applicant
- and -
D.E. and J.D.
Respondents
Anthony Macri, for the Respondent, D.E. The Respondent, J.D., not appearing
Rosemary Gallo, for the proposed added party, B.G.
Heard: June 28, 2016
Justice: S.B. Sherr
Endorsement
Part One - Introduction
[1] This is a motion to be added as a party brought by B.G., the maternal grandmother of the two subject children in this case. The children are A.A.D., who is 8 months old, and C.M.D., who is 3 years old (the children).
[2] The children's mother, the respondent D.E., supports this motion. The Children's Aid Society of Toronto (the society) opposes it.
[3] The children's father, the respondent, J.D., did not attend at court or file any material on this motion.
Part Two – Background Facts
[4] The society apprehended the children from the care of their parents on April 25, 2016. The parents were arrested that day. The father was charged with 3 counts of Possession of Child Pornography, 3 counts of Access Child Pornography, 2 counts of Make Available Child Pornography, 1 count of Sexual Assault and one count of Invitation to Sexual Touching. The mother was charged with Sexual Assault, Invitation to Sexual Touching, Possession Child Pornography and Make Child Pornography.
[5] The parents have remained in jail since April 25, 2016.
[6] The police have recovered many pornographic recordings from the parents. One of the recordings made by the father shows C.M.D. involved in sexual activity with the mother. The mother has reportedly told the police that there was a second incident where she and the father recorded C.M.D. in sexual activity with another person.
[7] The police also located a document in the parents' home that stipulated different sexual acts that the slave (the mother) was supposed to perform for the master (the father) including offering her children for the sexual pleasure of the master. The document was initialed by the mother.
[8] The protection concerns for the children are profound.
[9] The society commenced a protection application. It asks that the children be found to be in need of protection pursuant to clauses 37(2)(c) and (d) of the Child and Family Services Act (the Act). It seeks a disposition of six months society wardship.
[10] On April 29, 2016, Justice Melanie Sager made a temporary order placing the children in the care of the society.
[11] The parents have not had access to the children since the apprehension.
[12] The maternal grandmother quickly came forward and asked the society to place the children with her. The society has started a kinship assessment of her plan.
[13] The maternal grandmother has asked the society to start access for her with the children. The society has advised her that they are not prepared to agree to access at this time.
[14] A paternal aunt of the children has also come forward and asked the society to place the children in her care. Chatham-Kent Children's Services has started an assessment of this plan on behalf of the society. The paternal aunt attended at court with counsel. The court was advised that she may also bring a motion to be added as a party.
Part Three – Legal Considerations
[15] Subrule 7(5) of the Family Law Rules (the rules) states that the court may order that any person who should be added as a party shall be added as a party.
[16] The court in Children's Aid Society of London and Middlesex v. S.H., S.W. and D.R., [2002] O.J. No. 4491, (Ont. Fam. Ct.), set out the following principles for the court to consider before adding a party to a child protection proceeding:
(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.
[17] The court in Children's Aid Society of London and Middlesex v. J.P., [2000] O.J. No. 745, (Ont. Fam. Ct.), added one more principle:
Whether the person seeking to be added as a party has a legal interest in the proceeding (i.e., whether an order can be made in their favour or against them).
[18] In Children's Aid Society of Algoma v. V.C., 2011 ONCJ 83, Justice John Kukurin wrote at paragraph 19:
The case of Children's Aid Society of London and Middlesex v. S.H., S.W. and D.R., supra, does not stand for the proposition that all four of the "criteria" mentioned in that case must favour the motion applicant before the court can add that person as a party under subrule 7(5). This subrule uses the words "may order", which denotes a permissiveness that should be exercised judicially. In other words, judicial discretion.
[19] The ability of an existing party to present a plan of placement of a child with a non-party can be a significant consideration in deciding whether to add that non-party. See: Catholic Children's Aid Society of Toronto v. H. (D.), 2009 ONCJ 2.
[20] That someone may have relevant evidence in a case does not elevate them from a witness to party status. See: Noik v. Noik (2001) R.F.L. (5th) 370 (Ont. S.C.J.).
[21] Where the addition of a party is likely to increase a child's exposure to adult conflict the court should be cautious about adding the party. The court should look at the proposed party's ability to cooperate with the society and proceed in a child-focused manner. See: Children's Aid Society of Toronto v. C.K., 2013 ONCJ 342, [2013] O.J. No. 2917.
[22] It is not necessary for the court to determine at this stage whether the plan of the proposed added parties would be successful; the question at this stage is whether their plans merit consideration, despite the delay in bringing it. See: Catholic Children's Aid Society of Toronto v. H.(D.), supra.
Part Four – Should the Maternal Grandmother Be Named as a Party Pursuant to Subrule 7(4) of the Rules?
[23] The maternal grandmother first submitted that she should have been named as a party to the protection application pursuant to subrule 7(4) of the rules. This subrule reads as follows:
PARTIES IN CASES INVOLVING CHILDREN
(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child and Family Services Act, shall be named as a party, unless the court orders otherwise:
- A case about custody of or access to a child.
- A child protection case.
- A secure treatment case (Part VI of the Child and Family Services Act).
[24] The maternal grandmother claims that she shared in the care and control of the children with the parents. This submission is based on her seeing the children 2 or 3 times each week, having the older child spend some overnights with her and her often picking C.M.D. up from daycare.
[25] The court disagrees with this submission. While the maternal grandmother has assisted in the care of the children she has never had control of them. The parents, not the maternal grandmother, had the exclusive legal right to make decisions about the children, including their medical care, religion and education. They are the persons who had care and control of the children. See: Children's Aid of Toronto v. C.K., supra.
Part Five – Should the Maternal Grandmother Be Added as a Party Under Subrule 7(5) of the Rules?
[26] The society submitted that the maternal grandmother should not be added as a party at this time for the following reasons:
a) The maternal grandmother's plan can be presented by the mother.
b) The society is in the middle of assessing the maternal grandmother's plan. The protection concerns are significant and the society needs to know a lot more about what the children were subjected to, how it has affected them, the maternal grandmother's knowledge of what was occurring with the parents, the maternal grandmother's ability to protect the children and how contact with the maternal grandmother might adversely impact the children. The society deposed that C.M.D. is experiencing anxiety and behavioural problems. It expressed concern that contact with the maternal grandmother may trigger more distress for C.M.D.
c) The police have asked to interview the maternal grandmother in the criminal case against the parents as a witness. The court, the society submits, should wait to see the results of this interview before determining if the maternal grandmother should be added as a party.
d) We are at an early stage of the case. It is not necessary to add the maternal grandmother at this time.
e) Addition of the maternal grandmother will unduly delay and complicate the case.
f) Addition of the maternal grandmother may necessitate adding the paternal aunt as a party. This will make the litigation much longer and unwieldy.
g) Addition of the maternal grandmother might make it more difficult to obtain police disclosure because she would be entitled to receive it through the society.
[27] The court finds that the addition of the maternal grandmother is in the best interests of the children.
[28] The children's best interests will be served by a careful examination of the best long-term plan for them. There is a serious risk that this will not happen if the maternal grandmother is not added as a party.
[29] The maternal grandmother cannot rely on the mother to put forward her plan. The mother, in her Answer/Plan of Care, proposes placing the children jointly with her and the maternal grandmother. This is not the maternal grandmother's plan. She deposes that the mother will not be able to play a role in the children's lives for a very long time and only after a lot of professional intervention and assistance.
[30] The maternal grandmother's interests will not necessarily align with the mother's. The maternal grandmother will need to prove to the court that she has insight into the protection concerns and an ability to protect the children from their parents. This will likely entail minimizing the mother's contact with the children. The mother clearly wants as much contact with the children as possible.
[31] The evidence indicates that it is unlikely that the parents will be able to put forward a viable plan in the foreseeable future for the children. The court is required to consider family and community plans pursuant to subsection 57(4) of the Act. In a case where parents do not have viable plans, there will be a more compelling argument to add the proposed family or community member as a party.
[32] The maternal grandmother should have the opportunity to determine how to best put forward her plan and test the society's (and potentially the paternal aunt's) plan. She should have the opportunity to obtain full disclosure from the society and to engage in questioning pursuant to the rules. She should have the opportunity of engaging directly with the court in settlement discussions – not just about the children's placement, but also about the access of other family members to the children. She cannot do this without being added as a party.
[33] The evidence indicates that the maternal grandmother has been open and cooperative with the society to date. She has met with society workers, signed all consents requested by the society and has provided a clear criminal record check. This is not a case where her addition will expose the children to adult conflict.
[34] The maternal grandmother is presenting a plan that warrants serious consideration. The maternal grandmother provided uncontradicted evidence that she has a close and loving relationship with the children. She would see them 2 or 3 days each week and C.M.D. would spend some overnights with her. She took the children to many activities. Daycare providers for C.M.D. provided affidavits speaking about the close and loving relationship the maternal grandmother has with him. She is described as being very involved with the children and a good person to work with. They confirmed she often picked up C.M.D. at daycare.
[35] The maternal grandmother has no child protection or criminal history. She has had a stable home for 10 years. The society expressed no concern about her proposed accommodation for the children. She has presented a concrete plan of care for the children, including plans for their education, services to support them and how family and community members will support her plan.
[36] The maternal grandmother has been separated from her husband for many years. He filed an affidavit supporting the maternal grandmother's plan.
[37] The maternal grandmother has had sufficient involvement with the children to find that she has a legal interest in this case.
[38] Courts will be more reluctant to add parties when they present their case at the 11th hour, as this will unduly delay a permanent disposition for the children. See: Children's Aid Society of Peel Region v. M. A., 2009 ONCJ 348. That is not the case here. The maternal grandmother put forward her plan as quickly as possible. She sought access right away. She has already prepared a draft Answer/Plan of Care. She has undertaken to comply with all timelines. She is not contesting that the children are in need of protection. The maternal grandmother is taking all the steps she can to minimize any delay that will be caused by her addition as a party. The court can further protect against undue delay by restricting the maternal grandmother's participation in the case to the issue of disposition. This was the approach taken by Justice John Kukurin in Children's Aid Society of Algoma v. April S. and Thor W. (No. 3), 2004 ONCJ 25.
[39] The society submits that the maternal grandmother's motion is premature – the kinship assessment might even support her plan and the society could ultimately advocate for it. The court disagrees. It is understandable why the maternal grandmother has brought this motion. The society has denied her access to the children at this time. The society wants to further assess the children, await the completion of the police interview of the maternal grandmother and possibly the kinship assessment (which has been suspended pending the police interviewing the grandmother). This could take several months. The maternal grandmother is very concerned about how it will affect the children to have no contact with her for so long. The society's position might be merited (the access issue will be dealt with on a separate date), but the maternal grandmother certainly cannot rely on the society being aligned with her. It could prejudice her plan to wait several months to renew her request to be added as a party.
[40] The court has to also consider that there are presently two competing family plans. The court was advised that the paternal and maternal sides of the family are opposed to the other's plans. The maternal grandmother cannot be expected to rely on the society to support her plan. Even if it eventually approves her plan over the paternal aunt's, it may choose to settle access issues with the paternal aunt on terms that she does not support. If she is not a party, she will have no legal input into a resolution involving the paternal family (or the mother).
[41] This case will proceed more smoothly if the maternal grandmother is fully involved in the case management process as early as possible. The court will be able to ensure that production is received from the society and from third parties. It will have the opportunity of organizing the case for a possible trial at an early stage by focusing the issues and the evidence required to determine those issues. This will save time and costs down the road.
[42] The court will also be better able to engage the potential planners for the children in meaningful settlement negotiations if the maternal grandmother is added as a party.
[43] It would likely create more delay if the maternal grandmother was added several months from now. The court would have to grant her adequate time to obtain full disclosure and a trial may be delayed.
[44] There is always a risk that if parties are added and subsequently do not actively pursue their plan, the case will be delayed and become more cumbersome. There is no mechanism to remove such parties. Service issues can create additional cost and delay. It is more difficult to reach agreements. Accordingly, the court should not lightly add parties. The plan needs to be serious.
[45] The maternal grandmother has demonstrated that she is serious about her plan. She provided extensive documentation in support of her motion. She is actively planning for the children and appears to be committed to her plan.
[46] This case will likely become more complicated by the addition of the maternal grandmother (and perhaps the addition of the paternal aunt in the future). However, this is only one factor for the court to consider and is outweighed by the factors in support of adding the maternal grandmother as a party.
[47] The fact that the maternal grandmother may receive disclosure of police information is not a reason to deny her motion. There is a process to follow if the police or Crown are concerned about the disclosure of particular information to the maternal grandmother. The best interests of the children dictate that the court receive the best presentation of the plans for them.
[48] The society also provided no evidence to justify delaying the addition of the maternal grandmother as a party for the purpose of awaiting the results of her police interview. The police have asked to speak to the maternal grandmother as a witness. There is no indication at this point that she is suspected of harming or aiding in the harm of the children.
[49] The maternal grandmother deposed that she was aware that the parents were involved in "kinky" sex. Although she was not pleased about this and was concerned about the father's control over the mother, she thought that the parents' sexual activities were limited to consenting adults. She deposed that she is shocked by the disclosures involving C.M.D. and that she would have immediately notified the police or the society if she had known about them.
[50] The maternal grandmother deposed that the father has restricted her access to his home since 2010. This was after the maternal grandmother had called the police with concerns that the father was abusing the mother.
[51] The maternal grandmother is saying the right things. She is saying that the children, not the mother, are her priority. She deposes that the mother seriously failed her children, is responsible for the harm to them and needs serious long-term treatment. She does not endorse the mother's plan to live with her.
[52] The court might ultimately reject the maternal grandmother's plan. However, the court requires the best presentation and testing of the serious plans to make the best decision for the children.
[53] The society will still be able to argue that it is premature to grant the maternal grandmother access on the return of her access motion in August. The maternal grandmother will undoubtedly argue that C.M.D.'s distress can be equally explained by his having had no contact with family members since he was apprehended. It will be helpful for the court to receive evidence about the children from the professionals who are working with them at The Hospital for Sick Children.
[54] It is necessary to add the maternal grandmother to properly determine the issues in this case and for the court to have the best available information to decide which plan is in the children's best interests.
Part Six – Conclusion
[55] An order shall go on the following terms:
a) The maternal grandmother is added as a party to this case.
b) The maternal grandmother's participation in the case is limited to the issue of disposition.
c) The maternal grandmother shall serve and file her Answer/Plan of Care by July 30, 2016.
[56] The access motion is returnable on August 9, 2016 at 11 a.m.
[57] The court thanks all counsel for their excellent presentation of this motion.
Released: June 29, 2016
Justice S.B. Sherr
