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: April 4, 2018

Court File No.: Kitchener 720-14

Between:

Children's Aid Society of the Regional Municipality of Waterloo Applicant,

— AND —

C.T-C., A.L. and M.T. Respondents

Before: Justice B.C. Oldham

Heard on: March 22, 2018

Reasons for Judgment released on: April 4, 2018

Counsel

• Ms. Brown — counsel for the applicant society
• Ms. Towlson — counsel for the respondent M.T. (Maternal Grandmother)
• Mr. Brohman — counsel for T.N. (Foster Parent)
• Respondent, C.T-C. — not present
• Respondent, A.L. — not present

Decision

OLDHAM J.:

Motion for Expanded Participation Rights

[1] This is a motion commenced by Mr. Brohman, as counsel for the Foster Parent, T.N. seeking an order expanding her rights of participation in these proceedings as set out in section 39(3) of the Child & Family Services Act (the "Act") to include the following:

(a) disclosure of the Society file including the Kin Assessment of M.T.;

(b) the ability to attend trial, cross-examine witnesses, present evidence and make submissions; and

(c) the ability to participate in any argument of the admissibility of evidence.

Background Facts

[2] The proceedings in this matter involve a status review application which was commenced by the Children's Aid Society of the Region of Waterloo (the "Society") on July 27, 2015 (the "SR Application"). The SR Application was amended on October 7, 2015 to request an order that the child, L.T. born on […], 2012, be made a crown ward without access to her parents, L.T-C. and A.L. (the "Amended Application"). M.T. was added as a party to the proceedings by Order of Justice Hardman dated January 12, 2016.

[3] The Society brought a summary judgment motion seeking to withdraw its Amended Application or in the alternative, an order for crown ward, no access. M.T. brought a cross motion seeking expanded access. Both of these motions were heard before me on September 6th, 2017. I dismissed the Society's motion to withdraw the Amended Application, but granted the summary judgment motion in part. L.T. was made a crown ward, but the issue of M.T.'s access was directed to a focus hearing. M.T.'s motion for expanded access was dismissed. L.T-C. and A.L. did not participate in the hearing of these motions. They consented to the crown ward order and were not seeking access as they had already entered into openness agreements with the Foster Parent. The reasons for judgment were released on November 14th, 2017.

[4] There was no evidence before me from the Foster Parent at the hearing on September 6, 2017 with respect to access or whether access would impair adoption. L.T. has been in care since October 28, 2014 and in her current placement since November 2015. Mr. Brohman seeks an Order allowing the Foster Parent expanded rights to participate in the focus hearing.

Position of the Parties

[5] Mr. Brohman's position is that the sole issue at this stage of the proceedings is whether M.T., the maternal grandmother is to have access to L.T. Findings in need of protection have been made. L.T. has been made a crown ward. The Foster Parent as the proposed adoptive placement has a distinct legal interest in the issue of access as L.T. will be in her care. It is Mr. Brohman's position that foster parents are entitled to be more fully involved at this stage of the proceedings as they are no longer simply a keeper of the child on behalf of the Society. Without the right to expanded participation, the Society could consent to an order for access which would have an impact on the Foster Parent.

[6] Mr. Brohman also noted that his client was not seeking party status which could delay the proceedings. She is only seeking expanded participation. T.N.'s affidavit indicates that a draft of her affidavit for the purposes of the focus hearing has been prepared and can be finalized quickly following review of disclosure of the Society's file which is also being requested.

[7] Mr. Brohman claims that full disclosure is required so that his client can effectively participate in the proceedings and make informed submissions and cross-examine witnesses. The Foster Parent is in the best position to put forward the best interests of the child as the child has been in her care for 2.5 years. Her evidence is particularly relevant where M.T. challenges the evidence presented by the Society in respect of the impact of access on the child.

[8] The Society takes no position in respect of the motion, but confirmed that if ordered, disclosure can be provided quickly as all of the materials have been vetted and provided to L.T-C. and A.L. They simply need to be copied and provided to T.N.

[9] Ms. Towlson's position on behalf of the maternal grandmother, is that the relief sought is akin to a request for party status. Party status should be restricted to the rarest of cases and only ordered in situations where the child has been in care for an extended period of time and Society's and the foster parent's positions are different (i.e., the child is removed from the foster placement). Where the Society's and the foster parent's positions are aligned, as in this case, it would be procedurally unfair to allow expanded access, akin to party status. Ms. Towlson suggests that such an order would open the flood gates to applications by foster parents to become parties at the access stage of proceedings. It could result in bifurcated proceedings. Expanded rights would allow the Society and the foster family to 'gang up' on the party seeking access who already bears the onus in respect of access.

[10] Ms. Towlson submits that the Act is clear that foster parents are not to be parties. The Society can call the foster parent as a witness and can make submissions in respect of the best interests of the child. She disputes the claim that the courts have imposed a lower threshold in cases where findings have been made.

Law and Analysis

[11] The parties referred me to three decisions on this issue. The Catholic Children's Aid Society of Toronto v. R.D.S.de L. ("R.D."); A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 ("A.M."); and Children's Aid Society of London and Middlesex v. L.W. 2014 ONSC 6588 ("L.W.").

[12] While it was Ms. Towlson's submission that there is no distinction in the case law between early stages of proceedings and proceedings where findings in need of protection have been made, I disagree. Justice Henderson in L.W. reviews a number of decisions were the courts have highlighted the role of the foster parent as being an agent of the Society who should not be advancing a comparative analysis of plans as between themselves and the family. The following comments are made in respect of that position which suggest that at a different stage in the proceedings the role of the foster parent may be different.

Early Stage Proceedings — Foster Parent as Agent

a. Justice Marshman in Children's Aid Society of London and Middlesex v. J.P. at para 6 stated:

"It is safe to assume that the mother is correct and the foster parents' real interest in this proceeding is as a persons who wish to have the child placed with them on a permanent basis, presumably with a view to adoption. In my opinion, foster parents in that position have no entitlement to become parties to the proceedings. No order can be made in their favour or against them at this stage of the proceeding. J. is not a Crown ward. At this stage the foster parents are merely agents of the Society, which continues to have the sole discretion as to where the child is placed. Foster parents have limited rights under s. 61 of the Child and Family Service Act in circumstances where the child is a Crown ward and has lived with the foster parent continuously for two years. In my opinion it would be dangerous to give foster parents party status in circumstances where a child is not yet a Crown ward." [Emphasis added].

b. Justice Nasmith in Children's Aid Society of Metropolitan Toronto v. D.S. and F.S. (1991) at para 10 states:

[13] "It is anathema to the role of the foster parents at this preliminary stage of protection intervention to be setting them up as permanent caretakers and to have them staking their own custodial claims on the child. They should be preparing the child for a return to the family. Until it has been determined that there are grounds for removing the child from the family, and that there is no one in the family who is acceptable as a substitute caretaker, the foster parents cannot be putting forward their own resources as being 'better' than the family's or calling for a comparative analysis of plans as between themselves and the family. Before removal from the family has been justified, foster parents cannot have status to compete for the child and to argue 'attachment' or 'better resources'

There is a tacit agreement between the protection agency and foster parents that no claims for custody be made by them until the way has been legally cleared for them." [Emphasis added].

c. JJA. Weiler and Charron in R.L. v. Children's Aid Society of Niagara Region, 202 41858 (ONCA) wrote at para 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 …" [Emphasis added].

[14] In L.W., Justice Henderson was dealing with a request to provide the foster parents with disclosure to enable counsel to provide informed advice. The foster parent in L.W. was not seeking party status. The foster parent was not even seeking to participate in the hearing. After reviewing the above decisions, in dismissing the foster parent's request, Justice Henderson stated at para 15:

"Even though these cases deal with requests to add foster parents as parties, the theme is clearly to restrict their participation in the proceedings, particularly where there has yet to be a finding of a child in need of protection." [Emphasis added].

Post-Finding Stage — Changed Role of Foster Parent

[15] In the case before me, we are looking at the Foster Parent's right to participate in a hearing dealing only with the right of the Grandmother to exercise access to the child. The Foster Parent has already been identified as the adoptive family and the way has been cleared by my order making L.T. a crown ward. While the Society is aligned in respect of its request that there be an order for no access, the positions are not completely aligned in that the Foster Parent can be more specific in terms of the best interests of the child and how or why access may impair adoption in her home.

[16] The reference to "the stage of proceedings" in the above cited cases does not mean that foster parents are to be added as parties automatically once there has been a finding in need of protection or an order for crown ward. They do, however, suggest that the role of the foster parent changes and their rights to expanded participation or party status may not be reserved for only the rarest of cases once those determinations have been made. A less restrictive approach should be applied to situations where the foster parent is seeking expanded participation or party status to address the issue of placement, or access once there has been a finding in need of protection or an order for crown ward. The less restrictive approach should apply at this stage whether the foster parent's position is aligned with the Society's, or not. While the foster parent may not feel the need to participate in cases where the Society's position is wholly aligned with them, that situation should not preclude them from participating, if their participation is otherwise in the best interest of the child.

Court of Appeal Guidance — A.M. and R.D. Tests

[17] Each case will turn on its specific facts. This was recently confirmed by the Court of Appeal in A.M. In A.M., the motion's judge had granted party status. The motion judge's decision was overturned by the Divisional Court. The Court of Appeal reinstated the motion Judge's order and provided the foster parents with party status. In coming to that determination, the Court of Appeal adopted the reasoning and tests laid out by Justice Czutrin in R.D. and made the following comments at para 20:

In our view, both r. 7(4) and s. 39(3) of the CFSA preserve the court's discretion to add a foster parent as a party to a child protection proceeding. We agree that the power to add such a person as a party should not be exercised lightly. However, the Divisional Court circumscribed the exercise of that discretion too narrowly. While delay and legal interest are relevant, they are not, by themselves, determinative. The overarching consideration is the child's best interests. The motion judge determined that on the facts of this case, the F-A mother's participation as a party was both necessary and in the child's best interests. Further, we do not agree with the Divisional Court's assessment of the delay and legal interests factors.

[18] The Court of Appeal went on to cite the Children's Aid Society of London and Middlesex v. H.(S), as setting out the relevant questions to determine whether to add a party as follows:

(a) Whether the addition of the party is in the best interest of the child;

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

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

(d) whether the proposed party is a person capable of putting forward a plan that is in the child's best interests.

[19] The Court of Appeal also adopted Justice Czutrin's comments in paragraphs 20 and 21 of R.D. and endorsed his list of additional relevant considerations. (See para 25 of A.M.).

Justice Czutrin's Framework in R.D.

[20] In R.D., Justice Czutrin dealt with the appeal of a decision by Justice Jones to deny the foster mother party status and expansive participatory rights in a hearing for a protection application regarding a two year old child. Justice Czutrin granted the appeal, allowing the foster parent to have party status. In coming to that determination, he made the following findings:

(14) Once there is a finding of a need for protection, the Court's must make an order consistent with the child's best interests in accordance with s. 37(3) of the CFSA. It must collect and consider all available, relevant evidence to make this determination.

(15) In submissions, Society counsel conceded that the foster mother was the person who best knows this child. The child has never lived in a home other than hers. I do not see how having the foster mother lead evidence and cross examine other witnesses would derail the hearing in this case. At this stage, the question before the Ontario Court of Justice is what is in the best interests of the child. It is a child-centred consideration.

[21] At paras 20 and 21, Justice Czutrin noted the following:

(20) For very good and appropriate reasons, foster parents' rights are limited prior to an order making the child a Crown ward. At the same time, even if the foster mother were not added as a party, s. 39(3) of the CFSA leaves open (and in fact contemplates) that the court may grant foster parents rights to participate more fully. There is certainly no absolute prohibition against doing so. The motion's judge overemphasized the option of placing the child with his grandparents in the context considering the foster parent's rights of participation at this stage. The motion's judge should have also considered the impact on the child of the time that has passed in this case without resolution and the people who could best bring to light his best interests. The Act should be read and balanced as a whole.

(21) I find that the Court must, on a case-by-case and contextual basis, consider whether to grant leave to allow foster parents greater rights of participation, up to and including party status. These considerations might include:

1. The age of the child and the time line considerations of the CSFA;
2. Whether there has been a finding of a need of protection at the time the request for participation is made;
3. Whether the foster parents will be called to testify and whether their evidence will be challenged;
4. Whether the persons or parents who had charge of the child at the time of commencement of the proceedings are presenting a plan;
5. The time of continuing placement of the child;
6. Whether there has been any contact with the proposed caregivers;
7. Whether the application has been amended; and
8. Such other considerations that suggest the foster parent's involvement would clarify the best interests of the child.

Application to the Present Case

[22] In directing this matter to a focus hearing on the issue of access, I found that "it seemed that L.T.'s relationship with M.T. is beneficial and meaningful to her as a grandmother". M.T., however, is seeking access which is more akin to a parent, than a grandmother. I could not assess whether the access order being sought would be beneficial and meaningful or whether it impair adoption without hearing evidence. It will be important that these issues be fully canvassed.

[23] Ms. Towlson suggests that this evidence can be put in through the Society as they will call T.N. as a witness. She relies, in part, on the fact that both the Society and the Foster Parent are seeking an order for no access. While the positions appear to be aligned, I note that the Foster Mother's affidavit in support of this motion confirms that she would be agreeable to an openness agreement with the Maternal Grandmother. The Society did not provide any evidence in respect of its position on openness.

[24] The Foster Parent has also indicated that she is not prepared to adopt L.T. if the Maternal Grandmother is granted an access order. This evidence was not included in the Society's materials in the summary judgement motion.

[25] In her affidavit, T.N. notes that "as a foster parent, I am entitled to vary limited information about the parties. The only information I can rely on is the information I have received from dealing with the parties directly. In this case I have had a fair bit of contact with the various parties and that information leads me to believe that the Maternal Grandmother is not willing to accept or respect my place as the child's caregiver and as such, I am concerned that any order for future contact between the Maternal Grandmother and the child will permit the Maternal Grandmother to undermine my position as her caregiver and ultimately as her mother."

[26] T.N. also indicated "I am most concerned that both biological parents have stated that the Maternal Grandmother has used illicit drugs in the past and may very well still be a drug user." She notes that it is "me and my family who are most affected by having a future access order. If there is to be an access order, we will have to schedule our lives around that order and I would have to seek terms in any future access order that would hopefully limit M.T.'s ability to undermine my position as L.T.'s mother."

[27] As indicated, at this stage of the analysis, the court's decision must be child centred. It is therefore, important that the court have the best evidence available from a party fully informed in order to make a determination as to whether access is beneficial and meaningful and whether orders would impair the adoptability of a child.

[28] T.N., the Foster Parent in this case, is in the best position to put forward evidence and to cross examine in respect of what is in L.T.'s best interests.

[29] The Foster Parent should be able to do that from a position of knowledge and understanding of the Society's file. Information about access visits involving the maternal grandmother will be important.

[30] Counsel for the Maternal Grandmother suggests that the provision of this information will only arm the Foster Parent with further evidence to support a decision that she has already made. In this manner, Ms. Towlson submits that it would be procedurally unfair for the Maternal Grandmother who bears the onus of meeting the difficult threshold of establishing that her relationship is meaningful and beneficial, but also having to oppose the Foster Parent's evidence and objection to her having access.

[31] I do not agree that it is procedurally unfair. The onus and the test for an access order, does not change. The inquiry is to be child centred and the more information available to determine the impact of an order, positive or negative, on a child is procedurally proper.

Kin Assessment Disclosure

[32] T.N. has asked for a copy of the Kin Assessment which was completed on M.T. Kin Assessments contain very personal information and access to them should be restricted. The focus of the Kin Assessment is on the determination of whether an individual is can provide a safe and permanent placement. The reasons why the Kin Assessment of M.T. was not approved are summarized in my earlier decision. T.N. has access to that decision and the summary. The focus of the evidence in a Kin Assessment is very different from the focus of the evidence that may be relevant to the issue of access. I do not think that T.N. needs a copy of the Kin Assessment in order to be able to participate fully in the hearing on the issue of access and accordingly, this part of the motion will not be granted.

Delay Considerations

[33] No submissions were put to me in respect of concerns around delay until the question was posed to counsel. It seems clear that the delay will be minimal in that the Foster Parent has sworn that her affidavit is essentially prepared and ready to be filed. Her evidence would be called in any event and the fact that there will be two parties cross-examining will only increase the trial time marginally. I am satisfied that there would be no significant delays in this case.

Conclusion

[34] In applying the tests set out by the Court of Appeal, T.N.'s motion is granted (with the exception of the production of the Kin Assessment), for the following reasons:

a. T.N.'s request for expand participation in the focus hearing is in L.T.'s best interest as it will assist the court in determining the issues before the court. L.T. is five years of age and has been in the care of the Foster Parent for 2.5 years. The Foster Parent is in the best position to put forward evidence about what is in L.T.'s best interests.

b. There has been a finding in need of protection in this matter;

c. The Foster Mother has been identified as a witness by the Society; however, as noted by Mr. Brohman, it is clear that her evidence will be challenged;

d. The biological parents in this case, C.T-C. and A.L. are not participating at this stage;

e. The Foster Mother is prepared to adopt L.T. and has been put forward by the Society as the permanency plan for L.T. The Foster Parent has a legal interest in the outcome of the focus hearing on access; and

f. The expanded rights will not delay or prolong the hearing in any significant way.

Order

[35] For the above reasons, the following order will issue:

1. Disclosure of the Society file, with the exception of the Kin Assessment of M.T., is to be provided to T.N.'s counsel. Any disclosure provided to T.N. is subject to terms such that it cannot be copied (except for purposes of exhibits for trial), disclosed or disseminated in any way by counsel or by the Foster Parent. At the conclusion of these proceedings, any disclosure is to be destroyed.

2. T.N. may attend trial, cross-examine witnesses, present evidence and make submissions; and

3. T.N. may participate in any argument of the admissibility of evidence.

Released: April 4, 2018

Signed: Justice B.C. Oldham