WARNING
The court hearing this matter directs that the following notice 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: 2019-05-28
Court File No.: Woodstock C192/18
Between:
Children's Aid Society of Oxford County Applicant
— AND —
A.L. B.R. C.M. B.K. Respondents
Before: Justice S. E. J. Paull
Motion Heard on: May 14, 2019
Reasons for Judgment released on: May 28, 2019
Counsel
Benjamin McIver — counsel for the applicant
Gary D. McQuaid — counsel for the respondent(s), A.L.
James H. Rayner — counsel for the respondent(s), B.R.
Sandra C. Carnegie — counsel for the respondent(s), B.K.
James Battin — counsel for L.M.K.
PAULL J.:
Motion to Add Party
[1] Before the court is a motion at tab 13 of the Continuing Record brought by L.M.K. to be added as a party to this proceeding. This request is opposed by all the parties.
Background
[2] There are four children involved in this matter, S.L. born […], 2008 (female), N.L. born […], 2009 (male), C.J.A.M. born […], 2012 (male), and C.K. born […], 2018 (male).
[3] A.L. is the mother of all the children. B.R. is the father of S.L. and N.L. C.M. is the father of C.J.A.M. B.K. is the father of C.K.
[4] The Society brought a Protection Application issued November 9, 2018 seeking a six month supervision order with S.L. and N.L. placed in the care and custody of the maternal grandparents, L.L. and J.L., with C.J.A.M. placed in the care and custody of his father C.M., and C.K. placed in the care and custody of the paternal aunt, L.M.K. (the moving party in this motion).
[5] The Society has a history of involvement with A.L. related primarily to concerns with substance use, and there have been periods of time when the older children were in the care of the maternal grandparents, L.L. and J.L., or other family members due to these concerns.
[6] Following the birth of C.K. in September 2018 there were growing concerns with A.L.'s ability to safely parent the children. She was residing with B.K. until he left the home on October 31, 2018 after a verbal conflict with A.L. which involved them both consuming alcohol. Concerns were also being raised by the children's school and other family members.
[7] Throughout this period the Society was engaged in safety planning with the parents and on November 5, 2018 arrangements were made for A.L. and C.K. to stay with the paternal grandmother for the night, for N.L. and S.L. to remain with the maternal grandparents, and for C.J.A.M. to stay with his father while the Society continued its investigation.
[8] On November 6, 2018 A.L. acknowledged to the worker that she and B.K. had relapsed with drug and alcohol use before and after C.K.'s birth. Further safety planning was implemented that required A.L. to be supervised in caring for her children. She agreed to remain with C.K. at the home of L.M.K. while the other children remained where they were. A.L. left L.M.K.'s home later on November 6, 2018, reportedly to gather belongs for the baby, however she never returned and C.K. remained in L.M.K.'s care. Both A.L. and B.K. struggled to maintain contact with the children and their caregivers. B.K. denied there were relapses but ultimately did attend a substance abuse treatment program at Holmes House in Simcoe from March 9-29, 2019.
[9] The Society secured warrants and removed the children to a place of safety on November 8, 2018 on the basis of A.L. and B.K.'s continued struggle to maintain sobriety and to manage their addictions which was impacting their ability to parent and be available for the children.
[10] The matter was first returnable in court on November 14, 2018 at which time an interim without prejudice order was granted placing C.K. in the care of L.M.K., with S.L. and N.L. placed with L.L. and J.L., and C.J.A.M. placed with C.M., with access.
[11] When the matter was next returnable in court on December 11, 2018 the interim without prejudice order was amended as it related to A.L.'s access to the children.
[12] On January 22, 2019 the interim without prejudice order was made an interim order.
[13] The parties attended a settlement conference on February 27, 2019. The endorsement indicates that the parties all agreed to a resolution and the matter was put over to March 19, 2019 for that purpose. On March 19, 2019 the parties advised that a Statement of Agreed Facts was circulating and that further time was required. The matter was adjourned to April 2, 2019 for resolution.
[14] On April 2, 2019 the parties attended court with executed resolution documents which maintained the children's placements as outlined in the interim order for a period of nine months supervision.
[15] However L.M.K., who was the proposed placement for C.K. and where he was placed pursuant to the interim order, attended court on that date and indicated through an agent that she was withdrawing the consent she had executed to the supervision order which would place C.K. in her care. She sought an adjournment to consult with counsel. The remaining parties were provided little or no notice of this change in her position and opposed the adjournment.
[16] On April 2, 2019 findings with respect to all the children were made and final orders for disposition regarding S.L., N.L. and C.J.A.M. were granted pursuant to the consent. The issue of the disposition regarding C.K. was adjourned with the terms of the current interim order remaining in place.
[17] The matter was next returnable on April 23, 2019 at which point L.M.K. had brought the motion at tab 13 seeking to be added the as a party to the proceeding. Her position is that she withdrew her consent to a supervision order placing C.K. in her care in favour of advancing a claim for permanent custody of him at this time.
[18] Her motion to be added as a party was argued on May 14, 2019.
[19] The motion is opposed by all the parties in this proceeding, including L.M.K.'s brother and C.K.'s father, B.K.
[20] In addition to the submissions of counsel I have reviewed and considered the affidavits filed at tabs 14, 15, 17, 20-22.
The Law
[21] The court in Children's Aid Society of London and Middlesex v. S.H., [2002] O.J. No. 4491 (SCJ- Family Court) set out four principles for the court to consider in exercising its discretion to add a party as follows:
(1) whether the addition of the party is in the best interests of the child,
(2) whether the addition of the party will delay or prolong proceedings unduly,
(3) whether the addition of the party is necessary to determine the issues, and
(4) whether the additional party is capable of putting forward a plan that is in the best interests of the child.
[22] 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:
(5) 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).
[23] It is not necessary for all factors to favour the person seeking party status for the court to add him or her. While delay and legal interest are relevant, they are not, by themselves, determinative. The overarching consideration is the child's best interests. A.M. v. Val.M.K.s Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601.
[24] The governing rule is 7 (5). If the party is capable of putting forward a viable plan and there is no one else to put forward their plan, the party should be added. Catholic Children's Aid Society of Toronto v. H.(D.), 2009 ONCJ 2 (OCJ).
[25] 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. 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. Catholic Children's Aid Society of Toronto v. H.D., 2009 ONCJ 2.
[26] Possession of relevant evidence may make a person a witness, but does not elevate them to party status. Noik v. Noik, 2001 14 RFL (5th) 370 (SCJ).
Evidence and Analysis
[27] In support of her motion L.M.K. deposes that she is seeking to be added as a party to apply for permanent custody of C.K. Attached to her affidavit is a draft answer she proposes to file if made a party which seeks custody pursuant to s. 102, or alternatively that the child be placed in her care for 12 months supervision.
[28] Essentially her argument is that based on the long-term nature of the concerns for the parents substance abuse, and because C.K. has been with her since November 2018 and is doing well, that she should be permitted to be added as a party at this time in order to put forward a permanent plan. She takes the position that because of the strong connection between her and C.K. that it would be in his best interests if she were granted party status to pursue this claim.
[29] Much of the affidavit evidence she offers is in support of the propositions that the parents have a serious and long-term substance abuse issue that is not likely to be resolved in a period of supervision, and that the Society is not making decisions which are in C.K.'s best interest.
[30] B.K., L.M.K.'s brother, supports the continued placement of C.K. in her care but opposes her motion for party status on the basis that it is premature at this time.
[31] In his answer filed he seeks a return of or access to C.K., and his counsel advised that if L.M.K. was not added as a party that B.K. wanted an opportunity to amend his answer to add her as an alternate plan.
[32] The Society acknowledges that L.M.K. has consistently provided proper care and nurturance to C.K., however, takes the position that the placement with her on November 14, 2018 was under the clear expectation that she would work cooperatively with the Society to support C.K.'s reintegration back into his parent's care as they address the protection concerns.
[33] Between January 3, 2019 and February 1, 2019 A.L. successfully attended the substance abuse treatment program at the Oaks Centre in Elliott Lake. Upon her discharge she has continued with her aftercare and went to reside at Turning Point in London where she has been since February 2, 2019. While there she attends AA or NA meetings regularly and additional programs related to life skills and to supporting her recovery.
[34] L.M.K. deposes that she has serious concerns with how the Society is now permitting A.L.'s access to take place at the Turning Point residence. The Society has reviewed the circumstances and takes the position that it is a safe and appropriate place for access and will be looking to expand access going forward.
[35] The Society has verified A.L.'s successful participation in programming and remains in regular contact with Turning Point staff, who check-in during A.L.'s access which takes place in a private basement area. All reports received indicate that A.L. is prepared and engaged appropriately with C.K. during access and there has been no concerns raised.
[36] The Society is concerned that L.M.K. is unable to support C.K.'s relationship with his parents with a goal of reunification given her conflictual relationship with A.L. and her own goal of seeking custody of C.K. at this time.
[37] The kin worker deposes that she has regularly reviewed with L.M.K. the Society's safety planning with C.K. with his parents to allay her concerns, but that L.M.K. reports on a weekly basis her concerns for C.K. visiting A.L. at Turning Point.
[38] The kin worker also deposes that at times there has been difficulty working with L.M.K. as she would gather information from her own sources and use that information to be the basis of her opinion, which has caused additional conflict with A.L., in spite of the fact that the Society continues to get information directly from the parent's service providers.
[39] L.M.K. disputes that the Society is making decisions which are in C.K.'s best interest and disputes that she has a conflictual relationship with A.L. or that she is motivated primarily by her own goal of custody. She deposed that, "the Society is delusional with respect to the reintegration" in the parent's care because it does not know whether A.L. and B.R. will be successful in their rehabilitation.
[40] It is clear that L.M.K.'s position and approach to this matter has heightened the conflictual relationship between L.M.K. and A.L., particularly now that L.M.K.'s primary focus is obtaining custody of C.K.
[41] With respect to the application of the legal test to be applied I am satisfied that L.M.K. has a legal interest in this proceeding. With her consent at the time an interim without prejudice order was made on December 11, 2018 which placed C.K. in her care. This order was made interim on January 22, 2019.
[42] I am also satisfied that L.M.K. is capable of putting forward a plan that is in the best interests of C.K. It is not necessary at this stage for the court to determine whether L.M.K.'s plan would be successful, only that it is a plan that merits consideration. L.M.K. has had C.K. in her care since November 2018 and the applicant acknowledges that she has provided C.K. with loving and nurturing care.
[43] However, the addition of L.M.K. as a party is not necessary at this time to determine the issues. While C.K.'s father B.K. takes the position that L.M.K.'s motion is premature, he nonetheless supports his continued placement with L.M.K. at this time while he seeks to address the protection issues. He also requests the opportunity to amend his answer to add, as an alternative, that C.K. remain in L.M.K.'s care.
[44] There is no doubt that the addition of L.M.K. as a party would unduly delay resolution of this Protection Application.
[45] On April 2, 2019 all parties executed a Statement of Agreed Facts for a final order for nine months supervision with C.K. with L.M.K., and L.M.K. had also signed a consent for this disposition. However, when the parties were in court to file the consent documents L.M.K., with little or no notice to the other parties, withdrew her consent.
[46] This has significantly prolonged the resolution of this matter and more importantly created new issues related to what is now a conflict about permanent custody between the paternal aunt and the mother of C.K.
[47] The primary issue to be considered is whether the addition of L.M.K. as a party would be in the best interests of C.K.
[48] I accept that L.M.K. has provided appropriate care for C.K. and has a plan that is capable of meeting his needs going forward. However, the court is required to consider the best interests of C.K. under s.74(3) of the Act from a broader perspective based on the particular circumstances of this case and the primary purpose of the CYFSA.
[49] L.M.K.'s change in position and her motion, and the timing and manner in which it was brought with little or no notice to the parties, has created conflict unnecessarily when all the parties were consenting to C.K. remaining in her care for a period of supervision.
[50] The kin worker's evidence, and L.M.K.'s own affidavits which focus primarily on painting A.L. and the Society's efforts to support the family in a negative light, establish in my view that L.M.K.'s current focus is of seeking permanent custody of C.K. which has added to the challenges to be addressed, and illustrates that L.M.K. is not able to prioritize C.K.'s relationship with his parents, particularly his mother.
[51] L.M.K. statement that the Society is "delusional" with respect to its view of reintegration is particularly illustrative of this.
[52] I also accept the Society's evidence that L.M.K. agreed to the placement in November 2018 based on the clear expectation that she would work cooperatively to support C.K.'s reintegration in his parent's care as they address the issues. This is consistent with both the Society's mandate and the terms of the interim order that L.M.K. agreed to.
[53] The paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purpose of maintaining the integrity the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children, must always be at the forefront of the court's consideration.
[54] A caregiver's ability to cooperate and engage with the Society and parents in a child focused way is at the heart of a child's best interests, as much as the ability to provide appropriate care. While ensuring the child's safety and welfare is the primary focus, it is also in the best interests of children to maximize a parent's ability and opportunity to succeed.
[55] While L.M.K. clearly cares for C.K. and has a plan worthy of consideration, she appears to view C.K.'s best interests in the narrow context of her own litigation interest. Withdrawing her consent to the supervision order placing C.K. in her care on the day it was to be filed without notice to the parties was also not helpful or in C.K.'s best interests, and illustrates her narrow focus in this matter.
[56] I agree with Ms. Carnegie's submission that this motion is premature and has created an unfortunate situation that has caused additional issues for this family.
[57] While I accept that L.M.K. has provided appropriate and loving care for C.K. at a time when neither of his parents were in a position to do so, her motion and approach to this matter has not only prolonged the resolution of the Protection Application but has created additional issues and conflict unnecessarily. This is not in C.K.'s best interests and has been an impediment to the applicant and parents focusing their energies on addressing the protection concerns.
[58] This is not a Status Review Application where the parents have had an opportunity and failed to address the concerns. Were it at that point L.M.K.'s motion would in all likelihood have been granted. This matter is a Protection Application which was resolved relatively early in the process to permit the parents to continue to work with the Society to address the concerns with the goal of reunification, with the children remaining out of the parent's care while they do this. This approach is consistent with the paramount purpose of the Act, and in C.W.'s best interests in the particular circumstances of this case. A more thoughtful approach by L.M.K. would have been appropriate in the circumstances.
[59] As such, it is premature to consider adding L.M.K. as a party. All parties in this matter are consenting to an order with C.K. residing with kin to allow time for the parents to continue to engage in services to address the issues with the goal of expanding access and family reunification. This approach is consistent with the Society's and the court's mandate under the CYFSA, and most importantly with C.K.'s best interests at this early stage of the proceeding.
[60] Overall, adding the paternal aunt as a party is not necessary or in C.K.'s best interests at this time, and will unduly prolong the resolution of this matter. These outweigh the fact that L.M.K. has provided appropriate care for C.K. and has a plan of care worthy of consideration. Her plan will nonetheless be before the court through C.K.'s father.
[61] However, the best interests of the child are not static, and the balancing and weighing of the various factors and the child's needs themselves change over time. This may justify a reconsideration of the motion to add her as a party should the circumstances warrant it.
[62] I also note that since L.M.K. has had C.K. in her care since November 2018 she now has the specified rights to participate as outlined in s. 79(3) of the CYFSA. These include the right to notice, to be present at a hearing, to be represented by counsel, and to make submissions, but do not permit any further participation without leave of court.
[63] Rule 7(5) provides a discretionary authority to the court to add a party where appropriate. Based on all the considerations outlined herein the motion to add L.M.K. is dismissed.
Order
[64] An order shall issue as follows:
The motion at tab 13 is dismissed.
Leave is granted to B.K. to file an amended answer by June 14, 2019.
Released: May 28, 2019
Signed: "Justice S. E. J. Paull"