WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: 2019-04-29

Court File No.: 125 N. Brodie St., Thunder Bay, ON FO-15-190-02

Between:

The Children's Aid Society of the District of Thunder Bay Applicant

— AND —

T.B., J.B. Respondents

Before: Justice D. MacKinnon

Heard on: February 28, 2019

Reasons for Decision on Motion released on: April 29, 2019

Counsel

• M. Chambers — Counsel for the Applicant Society
• K. Costa — Counsel for the Respondent T.B.
• M. Petryshyn — Office of the Children's Lawyer
• S. Filipovic — Counsel for A.B. and P.B.

Decision

MACKINNON, J.:

[1] Motion to Add Grandparents as Parties

[1] This is a motion brought by paternal grandparents, A.B and P.B. (hereinafter referred to as "the grandparents"), to be added as parties to this Status Review application involving their grandson C.B. The grandparents rely on the authority set out in s.79 of the Child, Youth and Family Services Act (referred to herein as CYFSA) and on subrule 7(5) of the Family Law Rules.

Position of the Parties

[2] The Children's Aid Society of the District of Thunder Bay and the Children's Lawyer consent to having the grandparents added as parties. The mother of C.B. does not agree. The father of C.B. who filed an Answer has not participated in this process. The matter was argued before me.

Background

[3] The parents of C.B. are T.B. and J.B. He was born on […], 2015 and is a child with special needs. At the time of his birth, his mother was 15 years old and a Crown ward. She continues to be a Crown ward today. The father of C.B., J.B., is the son of the paternal grandparents and was 25 years old at the time of the birth of C.B. He was convicted of sexual assault involving T.B. due to her age. The parents of C.B. tried to cohabit but the relationship ended. The parents have maintained a cordial relationship but have moved to different communities.

[4] The following are the key dates in the court proceeding:

• August 11, 2015 — temporary care supervision order – child in mother's care
• October 6, 2015 — final order, finding child in need of protection under s.37(2)(l) of the CFSA with the child in care of mother under supervision for six months
• July 26, 2016 — final order, with child in care of mother under supervision for a further six months
• December 2016 — child into care of paternal grandparents
• January 2017 — child in temporary care of agency
• January 24, 2017 — first appearance on Status Review
• February 7, 2017 — child returned to grandparents
• March 28, 2017 — final order, child placed with paternal grandparents subject to supervision of CAS for a period of six months
• August 28, 2017 — Status Review application commenced
• December 5, 2017 — case conference
• January 9, 2018 — case conference adjourned
• April 6, 2018 — settlement conference adjourned
• May 15, 2018 — settlement conference held
• June 26, 2018 — OCL order
• October 18, 2018 — second settlement conference adjourned
• December 18, 2018 — first appearance of grandparents' motion to be added as parties

There were 16 further attendances where the matter was spoken to.

Participatory Rights

[5] There is a category of individuals under the CYFSA who are entitled to be served with notice of an application in order to trigger their participatory rights set out in s.79(3):

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 lawyer; and

(d) may make submissions to the court,

but shall take no further part in the hearing without leave of the court.

[6] Do the paternal grandparents meet this criteria?

[7] According to the affidavit of the mother T.B., the grandparents began caring for the child in December of 2016. The agency affidavit states that the child came into care on a temporary basis in January of 2017, but was returned to the grandparents on February 7, 2017. On March 28, 2017, the child was placed in the care of the paternal grandparents by court order for a period of six months subject to supervision by the agency.

[8] By the time that the Status Review was commenced on August 28, 2017, the grandparents had met the criteria in s.79(3) for notice of the hearing and participation in the hearing as they would have had care of C.B. for more than six months. The rights of participation however are not the same as the rights that a party to the proceeding would have. For example, a party is entitled to call evidence and cross-examine witnesses.

[9] The grandparents A.B. and P.B. should have been served with the Status Review application pursuant to s.79(3) of the CYFSA and would have had the right to participate immediately, but without the full rights afforded to a party. This is the reason that the grandparents seek full party status.

Party Status

Family Law Rules, Ontario Regulation 114/99

[10] Rule 7 of the Family Law Rules describes persons who are parties to an application. The criteria for establishing party status for cases involving children is found in subrule 7(4):

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, Youth and Family Services Act, 2017, shall be named as a party, unless the court orders otherwise:

1. A case about custody of or access to a child.
2. A child protection case.
3. A secure treatment case (Part VII of the Child, Youth and Family Services Act, 2017).

O. Reg. 114/99, r. 7(4); O. Reg. 298/18, s. 7(1, 2); O. Reg. 535/18, s. 1.

[11] Do the grandparents have party status in accordance with this rule? There are a number of questions which must be answered.

[12] Did the grandparents have care and control of C.B. at the time of the commencement of the application? As set out above, the child has been in the care of the grandparents continuously from February 7, 2017 to today. The Status Review application was issued on August 28, 2017.

[13] The grandparents had care and control at the time of the commencement of the Status Review and should have been named as parties, unless the court had ordered otherwise. The court did not order otherwise.

[14] Are the grandparents actually foster parents and excluded from this section? The grandparents claim that they are not foster parents as they do not receive payment for providing care to C.B.

[15] The Child, Youth and Family Services Act defines foster care and foster parent 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 VIII (Adoption and Adoption Licensing),

and "foster home" and "foster parent" have corresponding meanings.

[16] The grandparents say that they are not paid for fostering. There is nothing to contradict this statement. I find that they are not foster parents under the CYFSA. Under subrule 7(4) the grandparents are not excluded on the basis of being foster parents.

[17] Is this case a "child protection case" as contemplated by this rule? A "child protection case" is defined under Rule 2 of the Family Law Rules as:

"child protection case" means a case under Part V of the Child, Youth and Family Services Act, 2017

[18] A Status Review is found in s.113 of Part V of the CYFSA and therefore this case is a "child protection case".

[19] In the case of Children's Aid Society of Toronto v. T.-J.M., D.F., R.H., B.Y., and S.P., 2010 ONCJ 701, Justice Sherr wrote about the interplay between the Child and Family Services Act, as it then was, and the Family Law Rules. He stated:

Subsection 39(3) (now s.79(3) of the CYFSA) of the Act appears to limit the maternal grandparents to specific rights of participation in the case and to restrict them from taking further part in the hearing without leave of the court. They are not parties if one only examines section 39 of the Act…However, the Family Law Rules, O. Reg. 114/99, as amended (the Rules), specifically expand the maternal grandparents' rights and require them to be named as parties in these circumstances…I found that the grandparents should have been named as parties in respect to T.M. as they had care and control of her as defined by this subrule at the time of the protection application and made that order prior to hearing the care and custody motion.

[20] Under the Family Law Rules, the grandparents are parties because they had care and control of C.B., they were not foster parents, and this is a child protection case in accordance with subrule 7(4).

[21] In Children's Aid Society of Algoma v. V.C., 2011 ONCJ 83, Justice Kukurin said the following in regard to the application by a grandmother for party status:

26 Subrule 7(4) is a subrule that deals with parties in cases involving children. Paragraph 7(4) para.2 makes this subrule applicable to child protection cases. It seems clear that if some person other than a parent had "care and control" of the child involved in the case, that other person "shall be named as a party unless the court orders otherwise".

27 This procedural requirement is no less obligatory simply because it is found in a rule rather than in the statute. A society, which should certainly be aware of who has care and custody of children it apprehends in most cases, should comply with this rule. If it does not want such person to continue as a party, it can seek, by motion, an order otherwise. It is not appropriate to simply ignore this rule.

[22] Pursuant to the Family Law Rules, the grandparents, who had care and control of C.B. at the commencement of the Status Review application, and are not foster parents, are parties and were required to be named as parties in this Status Review, which is a child protection case contemplated by subrule 7(4).

Child, Youth and Family Services Act

[23] The Child, Youth and Family Services Act describes parties to a proceeding under the Act:

Parties

79(1) The following are parties to a proceeding under this Part:

1. The applicant.
2. The society having jurisdiction in the matter.
3. The child's parent.
4. In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child's bands and First Nations, Inuit or Métis communities.

[24] The grandparents in this case are not applicants. However, do they fit the definition of "parent"?

[25] In the CYFSA, the definition of "parent" relevant to this case is found in s.74:

"parent", when used in reference to a child, means each of the following persons, but does not include a foster parent:

5. An individual who has lawful custody of the child.

6. 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.

[26] On March 28, 2017, Justice Kunnas made an order based on a Statement of Agreed Facts. The order stated that, "The child C.G.W.B. born […], 2015 is hereby placed in the care and custody of the paternal grandparents, P. and A.B. subject to the supervision of the Children's Aid Society of the District of Thunder Bay for a period of six (6) months, subject to the terms and conditions set out in the appendix attached to the Statement of Agreed Facts…".

[27] P.B. and A.B. had care and custody of C.B. at the time of the Status Review and were not foster parents. This was a lawful custody as it was set out in Justice Kunnas' order. This definition was similar under the CFSA. The grandparents fall within the definition of "parent" in s.74 of Part V of the CYFSA and are therefore parties to this proceeding in s.79 of the Child, Youth and Family Services Act. They are "statutory" parties as their status derives from the governing legislation and cannot be reduced or constrained by the Family Law Rules. (see Kawartha-Haliburton Children's Aid Society v. S.(B), 2011 Carswell 9702 (Ont. Div. Crt.))

Discretionary and Exclusionary Provisions

[28] The motion before the court requests that the grandparents be made parties under subrule 7(5) of the Family Law Rules by the exercise of the court's discretion.

[29] Even in subrule 7(4), while the grandparents shall be named as a party, the court can exercise its discretion to "order otherwise".

[30] Had I been required to consider whether to exercise my discretion to add the grandparents pursuant to subrule 7(5) or consider excluding the grandparents pursuant to subrule 7(4), I would have found that it was not in the best interests of C.B. to designate them as parties for the following reasons:

(a) The applicant agency and the Children's Lawyer support placement of the child by custody order with the grandparents. The father, who filed an Answer may also be aligned with his parents. Any evidence necessary to this determination could have been presented by any of these parties including the calling of the grandparents as witnesses. It is unnecessary to add them to accomplish this. Children's Aid Society of the Region of Peel v. M.A., 2009 ONCJ 348, Children's Aid Society of the County of Simcoe v. D.C.

(b) The focus of the Status Review would change from a contest between the agency and the parents especially the mother, to a comparison of the homes of the grandparents and the mother.

(c) The affidavits filed by the grandparents are replete with harsh and negative conclusions about the mother, unsupported by evidence. This animosity and distrust of the grandparents and the resentment of the mother related to their assumption of parenting would only become magnified by being directly competitive at trial. It is not in the best interests of C.B. to have conflict in his family intensified. Catholic Children's Aid Society of Hamilton v. J.O.

(d) The matter has been going through the court process since August of 2017. Adding parties at this stage would prolong and complicate the proceeding, which is not in the interests of C.B. Children's Aid Society of Algoma v. V.C., 2011 ONCJ 83, Children's Aid Society of the County of Simcoe v. D.C.

(e) There would be an unfairness to the mother in having a third or fourth party challenging and examining her. Children's Aid Society of Toronto v. C.K. et al., 2013 ONCJ 342

(f) The delay in applying for party status is unexplained particularly given the view of the grandparents that they have been kept from information about the case, a claim which cannot be sustained in light of their participation in the making of the order in their favour. Catholic Children's Aid Society of Hamilton v. J.G., 2015 ONSC 1540

[31] Understanding that the overarching purpose of the CYFSA is to promote the best interests of children, I have had to contemplate whether these issues mean that I should override the party status of the grandparents set out in s.79 on that basis.

[32] The legislators have set out a procedural system of parties in s.79 of the Child, Youth and Family Services Act and have not inserted a discretionary element into this section, unlike subrule 7(4) of the Family Law Rules. I find that I should not dismiss the party status of the grandparents when the governing statute sets out their status and rights explicitly. In addition, while there may be a conflict between s.79 of the CYFSA and the Family Law Rules in subrule 7(4), I interpret that the governing legislation of the CYFSA takes precedence.

[33] In these circumstances the motion before the court is redundant. It is not necessary for me to determine whether to exercise my discretion and consider whether the paternal grandparents should be added as parties under subrule 7(5), or excluded as parties under subrule 7(4). The Child, Youth and Family Services Act in s.79 establishes that A.B. and P.B. are statutory parties as parents, though not named or served by the applicant agency.

Order

[34] While I recognize that this case has been active for a considerable time, it is important that the matter proceed expeditiously toward a hearing.

[35] In furtherance of this decision, I order the following:

1. The grandparents A.B. and P.B. are parties in this Status Review proceeding.

2. The Applicant shall serve the Status Review Application and any outstanding motion materials on the grandparents within the next 5 days.

3. Each other party shall serve his or her Answer and outstanding motion materials on the grandparents within the next 5 days.

4. Upon service the grandparents shall have 30 days to file an Answer.

5. Replies to the Answer may be filed within ten days of the service of the Answer.

6. The matter shall be returnable on a future agreed intake date to set a date for a settlement conference to resolve the issue of ongoing access to the mother.

7. A date for a trial management conference shall be set on the subsequent return date.

8. Costs reserved to the trial judge.

Released: April 29, 2019

Signed: Justice D. MacKinnon