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 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,

(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: October 24, 2017

Court File No.: Brampton 20080/17

Between:

The Children's Aid Society of the Region of Peel, Applicant,

— AND —

J.D.S. (Mother) Respondent,

— AND —

A.O. (Father) Respondent.

Before: Justice L.S. Parent

Heard on: October 17th, 2017

Reasons for Judgment released on: October 24th, 2017

Counsel:

• A. Rozario — counsel for the applicant Society
• A. Kain — counsel for the paternal grandparents

PARENT, J.:

BACKGROUND

[1] The proceedings before the court involve two children, namely A.O., born on […] 2016 and J.O., born […], 2017.

[2] The children were removed from the care of their parents Ms. J.D.S. ("the mother") and Mr. A.O. ("the father") at the Hospital for Sick Children in Toronto, ON on June 10th, 2017.

[3] The grounds in support of the apprehension of the children was unexplained injuries to the child J.O. sustained during the almost six weeks of life under which J.O. was in the care of the parents.

[4] At the time of the children's apprehension, the parents and children were residing with the paternal grandparents and one great-aunt at the same residence.

[5] On June 16th, 2017, the Children's Aid Society of Toronto filed a Protection Application seeking an order finding the children in need of protection pursuant to sections 37(2)(a)(i) and (b)(i) of the Child and Family Services Act ("CFSA") and an order that the children be made wards of the Society for a period of 6 months.

[6] On the same day, Pawagi, J. made a temporary without prejudice order placing the children in the care and custody of the Children's Aid Society of Toronto with access at the discretion of the Society as to frequency, duration and level of supervision. Pawagi, J. also transferred the proceedings to this court.

[7] On July 12th, 2017, I granted a temporary order, on consent of the parties, varying the order of Pawagi J. dated June 16th, 2017 such that all references to the Children's Aid Society of Toronto in Pawagi, J.'s order be replaced with the Children's Aid Society of the Region of Peel.

[8] On September 6th, 2017, I granted leave for a motion to be brought by the paternal grandparents seeking to be added as parties to these proceedings.

[9] On October 17th, 2017 this motion was heard and my decision was reserved.

MOTION BEFORE THE COURT

[10] The paternal grandparents bring this motion seeking to be added as parties to these proceedings pursuant to Rule 7(5) of the Family Law Rules ("FLR"), O. Reg. 114/99 and section 39(3) of the "CFSA".

[11] The mother and the father did not participate in the hearing of this motion as, on September 6th, 2017, counsel on behalf of the father and counsel on behalf of the mother indicated on the record their respective clients' consent to the grandparents' request to be added as parties.

[12] Submissions and materials for the motion were therefore limited to counsel on behalf of the paternal grandparents and the Children's Aid Society of the Region of Peel, who opposed the motion.

THE LAW

[13] Both counsel have filed factums in addition to affidavits in support of their clients' respective positions on the motion.

[14] There is no dispute between counsel regarding the criteria, as defined by the legislation and guidance pursuant to the caselaw, that must be considered in order for the court to exercise its discretion and add an individual as a party to a child protection proceeding.

[15] Counsel each reference Rule 7(5) of the "FLR" which provides as follows:

PARTY ADDED BY COURT ORDER

(5) The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.

[16] Counsel for the paternal grandparents further relies on section 39(3) of the "CFSA" in support of an order permitting her clients to fully participate as parties to these proceedings. Section 39(3) provides as follows:

Right to participate

(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.

[17] Counsel further agree that the leading decision on the question of adding parties is the Children's Aid Society of London and Middlesex v. H(S), [2002] OJ No 4491 (On. SCJ).

[18] The H(S) decision sets out the following principles the court must consider when asked to add a party to a child protection proceeding:

(i) whether the addition of the party is in the best interest of the child;

(ii) whether the addition of the party will delay or prolong the proceedings unduly;

(iii) whether the addition of the party is necessary to determine the issues;

(iv) whether the additional party is capable of putting forward a plan that is in the best interests of the child; and

(v) whether the additional party has a legal interest in the proceeding.

[19] Counsel further agree that it is not necessary for all the factors to favour the person seeking party status for the court to exercise its discretion to grant party status to the requesting individual.

[20] Counsel for the paternal grandparents however submits that, although the first four principles in the H(S) decision require only consideration by the Court in its analysis as to whether or not to exercise its discretion under Rule 7(5) FLR, the acceptance by the Court of the moving party having a legal interest in the proceedings requires the granting of an order for party status.

[21] Counsel for the Society disputes this submission. Counsel submits that the determination of a legal interest does not automatically require the Court to grant party status to a non-party.

THE POSITIONS BEFORE THE COURT

Paternal Grandparents

[22] The paternal grandparents have filed two affidavits before the court in support of their request to be added as parties to these proceedings.

[23] The affidavit of P.K.H.O, the paternal great-aunt to the children, sworn September 20th, 2017, is located at Tab 2, Volume 2 of the Continuing Record.

[24] The affidavit and exhibits of D.W., the paternal grandmother to the children, sworn September 20th, 2017, is located at Tab 3, Volume 2 of the Continuing Record.

[25] Counsel on behalf of the paternal grandparents concedes that there is no factual dispute regarding the apprehension into care of the children A.O. and J.O., namely that J.O. suffered significant injuries while in the care of his parents and that these injuries remain unexplained.

[26] Counsel submits that the paternal family is a large family with many extended members. She points out that this family has not had any interaction with child protection agencies prior to this current investigation.

[27] Submissions made on behalf of the paternal grandparents are that they wish to be added as parties so as to allow them to file an Answer and Plan of Care seeking the placement of the children with them. The paternal grandparents are of the view that the children's best interests require them to be placed with family members.

[28] Counsel concedes that the paternal grandparents are currently part of the criminal investigation associated with the physical injuries sustained by J.O. Counsel submits however that this is not a barrier to the children being placed in their care as they are disputing that they are the cause of the injuries.

[29] Counsel for the paternal grandparents references the evidence of the paternal grandmother and the paternal great-aunt which supports the role of the mother, Ms. J.D.S., as the primary caregiver to the children although many members of the paternal family resided in the same home. Counsel further submits that the extended members of the paternal family respected the parents' wishes that they were the ones responsible for their own children. Counsel submits that the designation of the mother as the primary caregiver is confirmed in an affidavit filed by her within the context of the Protection Application.

[30] Counsel for the paternal grandparents submits that her clients are unable to provide an explanation for J.O's injuries as they have no knowledge of the circumstances which lead to the injuries occurring. She submits that her clients are committed to the safety and protection of their grandchildren. She submits that they paternal grandparents are very upset about the injuries J.O. has suffered and the allegations that they are involved in causing these injuries.

[31] Counsel submits that the paternal grandparents are prepared to fully co-operate with the Society in order to work towards the placement of the children in their care. To that end, they have completed and served their Answer and Plan of Care setting out in detail how they will care for and protect their grandchildren.

Children's Aid Society of the Region of Peel

[32] Counsel for the Society opposes the motion on the basis that such an order is not in the children's best interests. She submits that the paternal grandparents are incapable, at this time, to present a viable plan for the children as they are currently part of the criminal investigation involving the injuries sustained by J.O.

[33] Counsel for the Society submits that the injuries to J.O. occurred within a zero to six week window whereby multiple individuals, including the paternal grandparents, had access to J.O. and A.O.

[34] Counsel for the Society acknowledges that the paternal grandparents have expressed a clear desire to offer a placement plan for their grandchildren. On this basis, the Society has undertaken a kin assessment. Counsel for the Society submits that the paternal grandparents do not need to be parties to the proceedings in order for their placement plan to be considered by the Society or the Court.

ANALYSIS

[35] I have considered the evidence in light of the five relevant questions and have determined as follows:

(i) Is the addition of the paternal grandparents as parties in the best interest of A.O. and J.O.?

[36] Counsel for the paternal grandparents and the Society agree that the overall objective of the "CFSA" is to promote the best interests, protection and well-being of children within their own immediate or extended family unit. The temporary and/or permanent removal of a child from his or her family must been seen as a last resort.

[37] Both counsel concede that the "CFSA" requires the Society to consider placement with kin should a return of the children to the parents not be a position they can support and prior to pursuing a placement in foster care. Counsel for the Society references that the application before the court is for six months society wardship and not crown wardship, which is the most intrusive order which can be sought.

[38] Within this context, it is certainly within A.O. and J.O.'s best interest that their paternal grandparents and/or other family members be given an opportunity to present a plan for their care. Should such a step be undertaken, the assessment of the paternal grandparents as possible caregivers must be given a priority of consideration which is secondary only to the parents and ahead of non-kin candidates.

[39] Principle (i) of the H(S) decision however directs the court to consider whether or not the addition of the paternal grandparents as parties is in the children's best interest.

[40] The evidence and submissions by counsel confirms that the parents and paternal grandparents are aligned in presenting a placement of the children with the paternal grandparents as an alternative plan to the parents resuming the care of their children.

[41] The medical evidence and the police investigation findings to date have been made available to all parties. This information has been shared by the parents with the paternal grandparents as evidenced by their ability to prepare and serve an Answer and Plan of Care in the absence of being served with the pleadings and disclosure independently and in anticipation of an order granting them party status.

[42] This information sharing was also confirmed by counsel for the paternal grandparents during submissions.

[43] Counsel for the Society has also confirmed that the assessment of the paternal grandparents has been commenced and progressed to the point that should they no longer form part of the ongoing criminal investigation, placement of the children with them would be the plan of the Society moving forward.

[44] The evidentiary record therefore confirms that the paternal grandparents plan for the long and short term care of these children will be put before the court for consideration. There is no evidence of risk that at this point the grandparents' interest will deviate from those of the parents thereby impeding the ability of the Court to consider their request regarding their grandchildren.

[45] Given this evidence, I am therefore of the view that the addition of the paternal grandparents as parties is not required in the best interest of A.O. and J.O.

(ii) Will the addition of the paternal grandparents as parties delay or prolong the proceedings unduly?

[46] Counsel for the paternal grandparents indicates that her clients have already served, on all parties, their Answer and Plan of Care. This is not disputed by counsel for the Society.

[47] Counsel for the paternal grandparents indicates that she has received instructions, if party status is granted, to seek the scheduling of a temporary care and custody hearing.

[48] A review of the entire court record confirms that the mother, Ms. J.D.S., filed an Answer and Plan of Care on August 31st, 2017. The father, Mr. A.O. however has not. Neither party has requested the scheduling of a temporary care and custody hearing.

[49] Given these circumstances, I am therefore of the view that the addition of the paternal grandparents as parties will not delay or prolong the proceedings unduly.

(iii) Is the addition of the paternal grandparents as parties necessary to determine the issues?

[50] Counsel for the paternal grandparents submits that the status of party is required for her clients so as to ensure that all long and short term placement opportunities are before the court for consideration in determining what is in the best interest of A.O. and J.O.

[51] Counsel submits that there had been a "falling out in the past" between the paternal grandparents and the parents resulting in these family members no longer living together in one household. Accordingly, the paternal grandparents cannot rely on either parent to put forward their plan for the children.

Paragraph 9 of the paternal grandmother's affidavit sworn September 20th, 2017 address the issue of the current state of the paternal family's relationship. She states as follows:

"The Respondent parents moved out of our home … in or around mid-August 2017 after we has a falling out….we love the Respondent parents and have reconciled, but they have not resumed living with us and our number one priority now is the safety and wellbeing of the Children."

Counsel for the Society submits that the mother, Ms. J.D.S., has put forth the paternal grandparents as alternative plans should she and the father not be in a position to resume the care of their children. A review of the mother's Answer confirms this position.

Counsel for the paternal grandparents confirmed in her submissions that the paternal grandparents' plan is indeed an alternate plan conditional on the children not being returned to the care of their parents.

Furthermore, the Society, in its materials and submissions, confirm that the paternal grandparents are the alternate plan which the Society will support if they are approved by the kinship assessment process.

[52] I do not accept counsel for the paternal grandparents submission that unless party status is granted, there is a risk that their willingness to provide care for their grandchildren, either short or long term, will not be presented to the court for consideration.

[53] The record confirms that the grandparents plan, although not formally presented in an Answer and Plan of Care as pleadings, is already before the court.

[54] Given this evidence, I am of the view that the addition of the paternal grandparents as parties is not necessary to assist in the determination of the placement options for these children.

[55] I am equally satisfied that the evidence does not support the participation of the paternal grandparents as parties for the purposes of determining whether or not A.O. and J.O. are children in need of protection.

[56] Counsel for the paternal grandparents submits that her clients' were never left to care for the children independently and dispute that they are the cause or facilitated the injuries suffered by J.O. Counsel further submits that her clients' are in the difficult position of having to disprove an incident they have no knowledge of.

[57] Given these submissions, which are supported by the evidence filed on behalf of the paternal grandparents, I do not find that the addition of the grandparents as parties is needed in order to determine the issue of whether or not A.O. and J.O. are children in need of protection on the grounds sought by the Society.

(iv) Are the paternal grandparents capable of putting forward a plan that is in the best interests of A.O. and J.O.?

[58] Counsel for the paternal grandparents submits that her clients have a viable plan to offer to the court.

[59] Counsel submits that the extended paternal family has a close connection and bond with A.O. and J.O.; they have the necessary skills and the willingness to provide appropriate care for all the children's needs, which include significant medical needs; they are able to offer and have offered both a short and long term placement option for the children and they have demonstrated a willingness to fully co-operate with the Society.

[60] The ability and willingness of the paternal grandparents to care for their grandchildren are not disputed by counsel for the Society.

[61] The position of counsel for the Society is that the paternal grandparents' plan is not viable, at this time, as they continue to be part of the criminal investigation into the serious and as yet unexplained injuries suffered by J.O. over a possible six week period and at different intervals throughout this period.

[62] I agree with the submissions by counsel for the Society.

[63] It may be that, at some point, the paternal grandparents will no longer be viewed as being potentially responsible for or allowing to occur the injuries suffered by J.O. The record however is clear that, at the hearing of this motion, this is not the case.

[64] For this significant reason, the plan of the paternal grandparents to provide a short or long term care for the children cannot be found to be in the best interest of A.O. and J.O.

(v) Do the paternal grandparents have a legal interest in this proceeding?

[65] Counsel for the paternal grandparents submit that her clients have a legal interest in this matter as section 57(4) of the "CFSA" requires the court to consider family placements for children prior to foster care placements.

[66] Counsel submits that the Society accepts, by its actions, that the paternal grandparents have a legal interest in the proceedings. Counsel submits that this conclusion can be drawn by the Court given the Society's position that placement of the children would occur should the criminal investigation determine that the paternal grandparents are no longer suspects regarding J.O.'s injuries.

[67] Counsel for the Society's position is that the paternal grandparents do not have a legal interest or in the alternative, their legal interest in secondary to the parents and equal to other members of the paternal family in support of the parents.

[68] Counsel for the Society does not dispute the fact that placement of the children with the paternal grandparents could occur contingent on the outcome of the criminal investigation. Counsel however submits that recent case law, as outlined in the Society's factum, does not support the proposition that if a legal interest is found to exist, party status is to be automatically granted.

[69] In support of her position, counsel for the Society submits that the determinative factor is not the existence of a legal interest but rather the protection and pursuit of the best interest of the children subject of the protection proceedings. (see: Simcoe Muskoka Child, Youth and Family Services v. M(B); A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell; and Children's Aid Society of Ottawa v. B(H).)

[70] There is no doubt that given the requirements of the "CFSA" coupled with the clear indication of the paternal grandparents' willingness to be considered both a short and a long term placement option for their grandchildren, alternatively only to the parents, that they have a legal interest in this matter as defined in the H(S) decision.

[71] I have carefully reviewed the affidavits and case law filed on behalf of the Society and the paternal grandparents in this matter on this issue. After this review and consideration, I agree with counsel for the Society's submission that the existence of a legal interest does not automatically eliminate the Court's discretion to decide whether or not a party should be added to child protection proceedings.

[72] The decision to add a party to proceedings must be examined within the paramount purpose of the "CFSA" as set out in section 1, namely "… to promote the best interests, protection and well-being of children."

[73] The decision to add a person as a party to a proceeding must therefore be on a case-by-case basis given the very specific facts of each case and the impact of this decision on the overall proceedings. For this very reason, the wording of Rule 7(5) FLR grants the discretionary authority to the Court to grant or deny such a request based on the facts as presented at the hearing of the party status motion.

CONCLUSION

[74] After a review of the material presented on behalf of the paternal grandparents and the Society and following submissions by counsel, I make the following determinations:

a) I find that the best interests of A.O. and J.O. will not be compromised if the paternal grandparents are not added as parties to these proceedings;

b) I do not find that the addition of the paternal grandparents as parties to the proceedings would necessarily result in an undue delay or prolong the proceedings;

c) I find that the addition of the paternal grandparents as parties is not required for the determination of the issues before the Court;

d) I find that the paternal grandparents are not in a position, at this time, to present a viable plan for A.O. and J.O.; and

e) I find that the paternal grandparents do have a legal interest in the proceeding in that an order could be made in favour or against them as it relates to placement and/or access.

[75] Given these determinations, I do not find that the adding of the paternal grandparents as parties pursuant to Rule 7(5) FLR should be granted.

[76] The notice of motion filed on behalf of the paternal grandparents also requested that they be added as parties pursuant to section 39(3) of the "CFSA".

[77] Section 39(3) grants limited rights of participation to any person "… who has cared for a child continuously during six months immediately before the hearing …" The section goes on to permit this individual to seek, by court order, additional rights within the protection proceedings.

[78] In order to exercise any rights provided by section 39(3), the individual must fall within the ambit of the section namely a person "… who has cared for a child continuously during six months immediately before the hearing …" The failure to meet this threshold requirement eliminates the opportunity of that person to participate in the protection proceedings within the context of section 39(3).

[79] In considering whether or not the paternal grandparents should be added as parties pursuant to Rule 7(5) FLR, I have noted their position and the evidence filed in support, that they were never in a position of caring for A.O. or J.O. while they resided with the parents and their grandchildren.

[80] The paternal grandmother, Ms. D.W., is clear in her evidence at paragraphs 30, 31 and 32 of her affidavit that despite a willingness to assist in the caring of A.O. and J.O., she was never permitted to do so by the mother.

[81] This division of roles was referenced by counsel for the paternal grandparents in her submissions and also at paragraph 11 of her factum.

[82] Given this evidence, I find that the paternal grandparents cannot rely on section 39(3) of the "CFSA" in support of their request to be added as parties to these proceedings as they cannot be determined to be persons who have cared for A.O. and/or J.O. continuously during six months immediately before the hearing.

ORDER

[83] Based on the facts and the evidence presented as summarized above, the motion requesting the addition of the paternal grandparents as parties to these proceedings is denied.

[84] The matter is adjourned to December 20th, 2017 at 9:30 a.m. in Courtroom #208 to be spoken as to next steps given my decision.

Released: October 24, 2017

Justice L.S. Parent