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: June 21, 2019

Court File No.: Sault Ste. Marie File No. 230/08

Between:

Children's Aid Society of Algoma, Applicant

— AND —

A.D. (Deceased) S.W. C.A. Ginoogaming First Nation Band Representative

Respondents

Before: Justice John Kukurin

Heard on: June 21, 2019

Reasons for Judgment released on: June 21, 2019

Counsel

Jennifer Mealey — counsel for the applicant society

Lindsay Marshall — counsel for the respondent father, C.A.

Murdoch Carter — counsel for the respondent mother, S.W.

Ginoogaming First Nation Band Representative — not present, although duly served

KUKURIN J.:

Motion to Add Paternal Grandparents as Parties

[1] This is a decision on a motion (at Tab 2, Vol. 11) brought by the Applicant society for an order to add as party respondents, the paternal grandparents of the children, E., age 3 and C., age 2. The application is a status review application under the Child, Youth and Family Services Act (the CYFSA).

BACKGROUND

[2] The society's status review application officially seeks continue placement of the children with their "kin", namely their paternal grandparents, D.A. and S.A., with whom they have been residing at their home in Midland, Ontario for the past seventeen months. The current placement is under a child protection order dated April 11, 2018 that has a nine month term and provides for the applicant society to supervise that placement, and also contains a number of conditions. The society seeks an extension of that order for a further nine months.

[3] However, the society is not averse to the court making a deemed custody order [1] in favour of these same grandparents. The society, for unspecified (in the evidence) policy reasons does not itself make claims for a deemed custody order in favour of anyone. It seems to want the persons in whose favour it endorses deemed custody to make such a claim. In this case, the paternal grandparents are not parties and hence are foreclosed from making that claim. Hence the reason for the motion to add these grandparents as parties.

[4] The paternal grandparents have already signed an affidavit that has found its way into the Continuing Record. They claim it was prepared for them by John Winter, a lawyer they retained in their hometown to act as their legal representative in this proceeding.

[5] The father consents to the order sought. He has filed an Answer and Plan of Care. In that Answer he seeks the same s.102 deemed custody order, namely one that grants custody to the grandparents.

[6] The mother opposes the order sought. She has filed an Answer and Plan of Care in which she seeks return of the children to her.

[7] This case is at the stage of a settlement conference which is scheduled for Sept 9, 2019.

STATUTORY, REGULATORY AND JURISPRUDENTIAL CONSIDERATIONS

[8] The CYFSA already gives to persons like these paternal grandparents, a number of participatory rights that are short of party status rights. These are set out in s.79(3) of the statute. Where a claim is made for party status, it is usually made under the Family Law Rules, specifically Rule 7(5), as it is in this case. Some jurisprudence has evolved in the case law applicable to the criteria for or against adding a person as a party.

[9] Section 79(3) provides:

S. 79 (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

[10] Rule 7(5) provides:

Rule 7 (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. O. Reg. 114/99, r. 7 (5).

[11] The leading case authority in this area is the S.H case [2] from 2002 which set out four criteria for adding parties in child protection cases:

(i) whether the addition of the party is in the best interests of the child,

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

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

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

[12] A fifth criterion was added by the J.P case. [3]

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).

[13] The paternal grandparents have had care of the two children for well over 1½ years. They are obviously a source of information that is first hand, and which I would consider to be valuable for the court to have in making any decisions in this case. One question that the court must answer is whether the participatory rights given by the CYFSA are insufficient to get this information before the court. Put in an alternative form, is party status necessary, and by this I mean "reasonably necessary", to get this information before the court?

[14] I conclude that, based on the participatory rights accorded to the grandparents by the statute, they have the means to have before the court, whatever they want to be provided. They have a lawyer to draft such information in a proper manner, and in fact, he has done so in the information filed at Tab 9 of the Continuing Record. He has managed to have this information filed (although how he managed to get non-party evidence filed is a mystery to me) [4]. He can request the society or the father, both of whom have legal representation, to file what they feel is appropriate for the court to consider. The fact that their son (the children's father) has an Answer that has a claim that is identical to what they are seeking argues for an inference that he will gladly comply. The society, while not claiming the deemed custody that the grandparents want, is not averse to such an outcome, and it too, could file as part of its case what the grandparents want to have before the court. Also, under s.79(c), their lawyer can represent them throughout this case to advance their participatory rights, including making submissions to the court. Finally, under s. 79, the grandparents can ask the court for permission to take further part in the hearing than s.79 ostensibly allows, if circumstances warrant such additional participation.

[15] Whether the grandparents should be added as a party is a vague and broad criterion under Rule 7(5). It is important that the CYFSA statute has defined in its own provisions, who are statutory parties. The grandparents do not fit within any of the statutory definitions. The court has to consider this statutory definition of who are parties as the starting point in its approach. Anyone else should have a good, cogent and practical reason for seeking party status. The grandparents made submissions at this motion as they are permitted to do under s.79(3)(d). What they said was that they were told that for them to make an application for a claim for a deemed custody order, they had first to be parties. I believe this is erroneous information.

[16] Firstly, the court may, and indeed may be required, to consider whether a deemed custody order is preferable to a protection order from a best interests of the child point of view. Secondly, there is no formal provision in the CYFSA that permits any person to make an application for a deemed custody order [5]. Thirdly, if I am wrong that a deemed custody order cannot technically be applied for, then such an order can be applied for only by anyone who is a party in the proceeding. Fourthly, there is such a claim before this very court made by the father of the children, who is a party, on behalf of the grandparents so it is unlikely that this will not be considered and ruled upon by this court.

[17] Accordingly, I don't see why the grandparents should be parties under Rule 7(5), at least in the present circumstances.

[18] Under the jurisprudence, the society has persuaded me that grandparents have a legal interest, that they are capable of putting forth a plan that may be in the best interests of the children, and to some extent, that it might be in the best interests of the children that they be parties. However, it has not satisfied me that adding them as parties will not unduly delay this proceeding, particularly as they and their lawyer all reside in Midland, and three more persons in the case than there are at present, clearly would add to time needed and consequently to delay. Most importantly, however, the society has not persuaded me at all that it is (reasonably) necessary that the grandparents be made parties for the court to determine the issues it must determine. While the first four criteria are phrased as being conjunctive in the S.H. case, I don't personally share the view that all four are always required to be satisfied to add a person as a party. [6]

[19] The society cites the decision of my brother Justice Sherr in his 2016 decision of D.E. [7] I agree with his decision to add the grandmother in that case. But the facts in that case are clearly not those in the present case. There, the grandmother had no avenue to get her plan before the court unless she was made a party. Her own daughter, the mother of the children in the case, had a plan different from hers. The father was in jail and there was no indication that he was supporting the grandmother or her plan. Additionally, there was an aunt of the children whose name had been put forward as a kin placement which the society was investigating. The facts in the present case are much different. The grandparents have several avenues to participate plus the statutory advantages granted to them because they have had care of the child for more than six months.

[20] Accordingly, the motion of the society at Tab 2, Volume 11 is dismissed but without prejudice to the rights of the grandparents to bring a motion for similar or the same relief should the circumstances change in the future.

Released: June 21, 2019

Signed: "Justice John Kukurin"

Footnotes

[1] S. 102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[2] Children's Aid Society of London and Middlesex v. S.H., S.W. and D.R., [2002] O.J. No. 4491, (Ont. Fam. Ct.)

[3] Children's Aid Society of London and Middlesex v. J.P., [2000] O.J. No. 745, (Ont. Fam. Ct.)

[4] The society's counsel indicated that the evidence at Tab 9 is not the society's evidence in this case.

[5] I say this because I have not been able to find such a specific provision. I do not interpret the fact that a pre-printed Child protection or Status review application, or an Answer and Plan of Care have a deemed custody order as an optional pre-printed claim, to be tantamount to a specific statutory provision that a person can formally apply for such an order.

[6] Children's Aid Society of Algoma v. V.C., 2011 ONCJ 83

[7] Children's Aid Society of Toronto v. D.E., 2016 ONCJ 390, [2016] O.J. No. 3481 (Sherr Ont CJ)