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: 2019-08-13

Court File No.: Elliot Lake File No. 16/11

Between:

Children's Aid Society of Algoma Applicant

— AND —

L.G. M.J.H. Respondents

Before: Justice John Kukurin

Heard on: Written submissions August 10, 2019

Reasons for Judgment released: August 13, 2019

Counsel

Anthony Marrato — counsel for the applicant society

George Florentis — counsel for the respondent mother, L.G.

No appearance by or on behalf of respondent father, M.H.

Andre L Berthelot — counsel for the Office of the Children's Lawyer, legal representative for the children

Reasons for Judgment

Kukurin J.:

Introduction

[1] This is a decision on a motion brought by Office of the Children's Lawyer (OCL) counsel for the three children in this status review proceeding which seeks from the court, permission to file a late Answer to the society's status review application.

[2] The issues in this motion are aptly articulated in the argument of OCL counsel in his argument:

(a) Do the children have a right to file an Answer in a status review proceeding?

(b) Is it in the children's best interests to extend the timeline to permit the children to file an Answer?

[3] The Applicant society opposes this motion. The mother has not responded, but appears not to oppose the relief sought.

Background

[4] Some background information is necessary to appreciate what is at issue. The proceeding in which this motion is brought is a status review application. The society is seeking an order for extended society wardship with no access to the mother (or father[1]) for purposes of adoption. There were previous protection orders made and I offer the following extract from a conference memo to describe the salient litigation history:

(a) Child Protection Application – April 2011 – resulted in July 4, 2011 order (Villeneuve J)

• finding under s. 37(2)(b)(i) and (ii) and (g) for all three children
• custody to mother with 12 month supervision order with conditions
• access by father to M. and J. subject to conditions and at discretion of CAS to supervise
• No Reasons available for any of the above found in the court file.

(b) Status review Application (No 1) – Oct 11, 2011 resulted in July 3, 2013 order

• custody to mother with 12 month supervision order with conditions
• access to father to M. and J. with conditions (supervised in CAS discretion)

(c) Status Review Application (No 2) – May 14, 2014 resulted in order Oct 20, 2014

• Custody to mother with 9 month supervision order with conditions
• No access to father to all children without CAS consent and arrangements

(d) Apprehension X3 – Early, without warrant from the mother – Nov 28, 2014

(e) Status Review Application (No. 3) – Dec 1, 2014 – still in progress after 4 ½ years

• children in temporary care of society care since 28/11/2014
• claim is for crown wardship/no access for adoption
• Father served substitutionally – no answer – in default
• Motion by maternal grandmother (N.R.) for party status – denied
• Motion by maternal aunt (R.C.) for party status – granted and recently removed on consent as added party
• Summary judgment motion by society – denied by Lalande J. April 23, 2018
• Appeal by society to Superior Court of Justice of Lalande J decision – appeal dismissed by E. Gareau Ont SCJ Dec. 4, 2018
• Trial dates set Sept 2019 – 9 days

[5] As can be seen, this litigation has gone on for over eight (8) years and the present status review proceeding is now over 4 ½ years old. The children are ages 15, 12 and 8. They all have legal representation in this proceeding by order of the court dated February 23, 2015. They have not hitherto filed any Answer and Plan of Care, but wish to do so prior to trial which is relatively imminent. It is conceded that they are late to file an Answer although when their time to file an Answer started to run is an issue in itself, as they have never been personally served with the status review application.

[6] The children have, through their OCL lawyer, prepared an Answer and Plan of Care which is filed on this motion essentially as a draft to let everyone know what it is that they wish to file in response to the society's application. In a nutshell, the children want:

• To reside together; they are now separated – the older two in one foster home and the youngest in another community;
• To be returned to and to reside with their mother;
• Not to be ordered by the court into extended society care;
• To be access holders to each other, and to their mother and maternal grandmother [in the event they are not returned to their mother]

Do Children Have a Right to File an Answer and Plan of Care?

[7] Children who are subjects of a child protection proceeding do not customarily file an Answer. Here, the first question for the court is whether they have the right to do so.

Issues to be Explored

[8] The answer to this question is not as simple as it may first appear. Among the issues to be explored in this issue in this case are:

1. What are "Answers" in child protection litigation, and how should they be treated by the court?

2. What participatory rights do children have in child protection/status review proceedings? If these rights are to be exercised by their legal counsel, do they include the right to file an Answer and Plan of Care.

3. Are rights of children age dependent, court dependent, statute dependent, or dependent on any other variables?

4. What is included in rights children have to express their views, to have them be given due weight, and to be engaged in open and honest dialogue about how and why decisions affecting them are made?

5. How does the court's duty to consider a child's views and wishes in determining a child's best interests involve a child's Answer?

6. What does entitlement to participate "… as if the child were a party" actually mean in s.79(6) CYFSA?

7. How do Rules 4(7) and 4(8) of the Family Law Rules apply in a child protection case, and what is meant by "rights of a party" accorded to a child in Rule 4(7)?

8. Do recent changes to the child protection legislation (i.e. enactment of the CYFSA) or to any other statutory or regulatory instruments have any impact on this question?

What is an Answer and How Should it be Treated by the Court

[9] What is an "Answer" (or more aptly in this case, an "Answer and Plan of Care") is of some importance. It is commonly accepted that an Answer is a "pleading" in a legal proceeding, and is not "evidence". However, the demarcation between a pleading and evidence is sometimes fuzzy. Neither the Child, Youth and Family Services Act (CYFSA) nor the Family Law Rules (FLR) define a "pleading". However Rule 1(7) of the Family Law Rules permits the court, in such circumstances, to have reference to the Rules of Civil Procedure (RCP). Under the RCP, a sort of definition is provided in RCP 25.06(1):

RCP 25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

[10] Clearly a pleading is not evidence. Evidence is a sworn statement usually attesting to some "facts" that are within the knowledge of the person who testifies to them for the court. A pleading has to contain a concise statement of those material facts, and to the extent that it does, it makes the court, and others involved in the case, aware of the basis for the claim or for the defence in that person's pleading. The pleading is not a sworn document. Customarily, pleadings include the Application, the Answer to that Application (which may contain claims of the person answering against the original applicant or against some other person), and the Reply which responds to any claims made in the Answer.

[11] To answer the question posed, it appears that an Answer and Plan of Care:

Firstly, indicates to the court whether the person answering consents to, opposes, or is somewhere in between, with respect to the claims made in the application;

Secondly, provides a formal vehicle for the person answering to put before the court that person's claims, either against the applicant or some other person;

Thirdly, indicates, in a concise, factual, but non-evidentiary manner, the basis for the position of the person answering, on the claims made in the case.

[12] Whether the court can infer from the Answer the views and wishes of the child who files an Answer depends on how a trial judge deal with an Answer by a child. In the present case, the society opposes the filing of the children's Answer mainly because it cannot but set forth the views and wishes of the children. It states that, in doing so, it is permitting OCL counsel indirectly to articulate those views and preferences to the court, something that he is precluded from doing directly by virtue of case authority. In Strobridge v Strobridge, 18 O.R. (3d) 753, the Court of Appeal stated:

"Counsel retained by the Official Guardian is entitled to file or call evidence and make submissions on all of the evidence. In my view, counsel is not entitled to express his or her personal opinion on any issue, including the children's best interests. Nor is counsel entitled to become a witness and advise the court what the children's access-related preferences are. If those preferences should be before the court, resort must be had to the appropriate evidentiary means:"

The Court of Appeal did not specify what "appropriate evidentiary means" included. Is the filing of an Answer by an OCL counsel for the child he or she represents tantamount to resorting to "appropriate evidentiary means"? If so, it may not be circumventing Strobridge at all.

[13] From my vantage point as a motion judge dealing with the issues in this motion, I would find it difficult to believe that a trial judge would not make some inference as to these views and wishes in his or her reading of an Answer and Plan of Care filed by a child, particularly when they are so polarized from what the society wants in this case.

What Participatory Rights Does a Child Have in a Child Protection/Status Review Proceeding

[14] The Family Law Rules are essentially procedural in nature and prescribe the documents (and provide standard Forms for each of them) in family litigation, which includes child protection litigation. Rule 10(1) sets out the procedural requirements of a person against whom an application is made:

Rule 10(1) A person against whom an application is made shall serve an answer (Form 10, 33B, 33B.1 or 33B.2) on every other party and file it within 30 days after being served with the application. O. Reg. 114/99, r. 10(1); O. Reg. 91/03, s. 2; O. Reg. 519/06, s. 4.

Is a claim made against a child who is the subject of a child protection (or status review) application? Some might say yes; some might say no. However, it can reasonably be argued that the end result of such applications generally have very significant implications for the child, and essentially dictate what are very fundamental life directions the child will follow thereafter, albeit always in what the court has found to be in the child's best interests. To the extent that these types of decisions are being made, I would argue that some "claim" is made against the child, even though it is not characterized as such in the formal litigation protocol. In this particular case, the claim of the society for extended society care, if the childrens' Answer and Plan of Care is permitted to be filed, would be diametrically opposed by the children. So would the society's claim of no parental access.

[15] Of note in the wording of Rule 10(1) is that it is the person against whom an "application" is made who has the responsibility to file an Answer. It says nothing about whether a person against whom a "claim" is made has any responsibility, or whether such person even has the right, to file an Answer. The Rules (FLR) do not specifically prohibit the filing of an Answer by such person. Also of note is that in this Rule, it is not a party against whom an application is made who is required to respond with an Answer, it is a person against whom an application is made who has this obligation. This person is usually a named party, but may arguably be a non-party – a child for example.

[16] In any event, the CYFSA deems age 12 years sufficient for a child to be required to be served with "notice" of the proceeding. The Rules equate this "notice" with service of the application. In this case, the two oldest children attained age 12 during the course of this present status review proceeding and ought to have been served with the application by the society. It is apparently required that this service be effected on the lawyer for the children once an order for their legal representation has been made.

CYFSA S. 79(4) A child 12 or older who is the subject of a proceeding under this Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.

Rule 8(7) In a child protection case in which the child is entitled to notice, the application shall be served on the child by special service. O. Reg. 114/99, r. 8(7).

Rule 8(9) If an order has been made for legal representation of a child under section 78 or subsection 161(6) of the Child, Youth and Family Services Act, 2017 or under subrule 4(7), the applicant, or another party directed by the court, shall serve all documents in the continuing record and any status review application on the child's lawyer. O. Reg. 114/99, r. 8(9); O. Reg. 140/15, s. 5; O. Reg. 298/18, s. 8(8).

[17] If a child receives notice of the proceeding, or has legal representation in the proceeding, that child is entitled, by the statute, to participate in the proceeding as if that child were a party.

CYFSA S.79(6) A child who is the applicant under subsection 113(4) or 115(4) (status review), receives notice of a proceeding under this Part or has legal representation in a proceeding is entitled to participate in the proceeding and to appeal under section 121 as if the child were a party.

[18] This provision in the statute unfortunately creates more problems than it solves. The problem is in determining where the participation rights accorded to such child ends.

[19] It is clear from case law that a child who is the subject of a child protection/status review proceeding is not a formal party in that proceeding.[2] Section 79(1) CYFSA sets out exhaustively who are parties. In addition, a Director must be added as a party on his or her request.

CYFSA S.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.

CYFSA S.79(2) At any stage in a proceeding under this Part, the court shall add a Director as a party on the Director's motion.

[20] The child is not in this list. Other than these statutory parties, the only way another person, whether an adult or a child, can be a party is by way of a court order made under Rule 7(5):

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).

[21] However, several cases have dealt with whether a child's statutory right to participate in the proceeding "… as if the chid were a party" is tantamount to creating party status for that child. In Children's Aid Society of the City of St. Thomas and County of Elgin v. L.S., Justice Schnall concluded at para. 48 and 49:

48 Subsection 39(1) of the Act lists those who are parties to a proceeding; children are not included in that list.

49 Subsection 39(6) deals with participation by children, as follows (emphasis mine):

A child who is the applicant under section 64(4) (status review), receives notice of a proceeding under this Part, or has legal representation in a proceeding, is entitled to participate in the proceeding and to appeal under section 69, as if he or she were a party.

Had the legislators intended for children to be parties to child protection proceedings, the sub-sections could have been easily and clearly worded to that effect.

This decision was in a case for costs sought by the society against the Office of the Children's Lawyer whose panel layer represented the child in a child protection case. The issue of whether the child represented by the OCL lawyer had party status was not directly in the same context as in the case before this court, but it had some bearing on Justice Schnall's decision. Moreover, the legal analysis was restricted to the statutory provisions of the CFSA (predecessor to the CYFSA).

[22] In C.R. v Children's Aid Society of Hamilton, Justice Czutrin confirmed Justice Schnall's conclusion that a child in a child protection case is not a party. However, he did so in a case where the OCL counsel for the child maintained that he had the duty to act for the child but did not have the responsibilities that a legal representative would normally have for an adult. The OCL counsel was found to be wrong and the court found at paragraph [21]:

"… There is no indication in either the rules or in the Child and Family Services Act that the Children's Lawyer is not to have responsibilities of a party in child protection proceedings. Because responsibilities were not expressly excluded, they may be deemed to be included."

[23] Another decision that ventured into the area of whether a child is a party in a child protection case was given by Justice M. Scott in Durham Children's Aid Society v. A.S., 2011 ONSC 1001, 97 R.F.L. (6th) 377. This was a decision which tied up a number of procedural loose ends in a child protection proceeding. Justice Scott concurring with both Justices Schnall and Czutrin that a child in a child protection case was not a party, she made the following statement at paragraph [67]:

"The court, whether these children are represented by counsel or not, is not only entitled but obligated to monitor and define the level of the children's participation - determining the rights and responsibilities of each such child to ensure that the paramount purposes of section 1 of the Act is maintained."

[24] I believe that this hits the nail right on the head. In fact, Justice Czutrin did precisely this in his decision, albeit by relying partially on his parens patriae jurisdiction, and partially on his perceived gap in the statutory or regulatory provisions applicable to his case. A child is given rights of participation, but those rights might not be the same rights for every child and may also vary with the facts of the child's particular case. The conclusion of Justice Scott was that when a child has a legal representative, that child's:

"counsel who will then participate in the proceeding as though their child clients were parties, with certain rights and even responsibilities, as determined by the presiding judge from time-to-time." [at paragraph 68]

[25] The former cases are persuasive but not binding on this court. An appellate court granted a 16 year old boy leave to intervene as an added party on appeal. This was admittedly an unusual ruling but certainly within the competence of any court. In S.G.B. v. S.J.L., 2010 ONCA 578, 102 O.R. (3d) 796, a domestic family case, the Ontario Court of Appeal determined that:

"In our view, granting the intervention motion is justified for two reasons. First, J.B. is now 16 years of age. Even accepting the expert evidence at trial that he has the emotional maturity of a 13 year-old, he is an intelligent young man and has reached the age where his voice is entitled to be heard by this court. Moreover, the trial judge's order has the potential to dramatically change J.B.'s life. In the light of that potential, he ought to be able to participate in the proceeding that will determine with whom and under what terms he lives, independently of either the alienating or alienated parent.

Second, the trial judge's order raises important and difficult issues. We think it would benefit the panel to hear J.B.'s perspective on these issues through the submissions of his own counsel. We therefore grant the motion to intervene, but on terms, which we discuss below."

This granting of party status to a teen demonstrates two things. First, the reasons why such an order should be made in this case from the child's point of view. Second, the benefit to the [appeal] court to hear the child's perspective (read 'views and wishes') through the child's counsel.

[26] There is yet another regulatory provision that deals with this issue. It is Rule 4(7) of the Family Law Rules.

Rule 4(7) In a case that involves a child who is not a party, the court may authorize a lawyer to represent the child, and then the child has the rights of a party, unless the court orders otherwise. O. Reg. 114/99, r. 4(7).

[27] Unlike the statute, this Rule does not grant a child with legal representation participatory rights as if he or she were a party. It seems to go further and grant the child the rights of a party (subject to a judge ordering otherwise). I am aware of the caveat in Rule 4(8):

Rule 4(8) Subrule (7) is subject to section 78 (legal representation of child, protection hearing) and subsection 161(6) (legal representation of child, secure treatment hearing) of the Child, Youth and Family Services Act, 2017. O. Reg. 298/18, s. 5.

However, Rule 4(8) only makes Rule 4(7) subject to s.78 of the CYFSA. Section 78 CYFSA is mainly concerned about when a child in a child protection case should have legal representation. It says nothing about the extent or limitations of the rights of a party given to a child by Rule 4(7).

[28] In the present case, each of the children qualifies under Rule 4(7) as children who have the "rights of a party". It is surely indisputable that the right of any party includes the right to file a pleading, in this case, an Answer and Plan of Care.

[29] In fact, even the CYFSA accords to a 12 year old child in extended society care the right to file an application for a status review, a clear statutory indication that a such child can file a 'pleading':

CYFSA S.115(4) An application for review of a child's status under this section may be made on notice to the society by, (a) the child, if the child is at least 12;

Surely if a child can set out claims and provide a concise statement of the facts on which such claims are based in an application (admittedly in the circumstances outlined for s.115), why would the CYFSA preclude the filing of an Answer when a child is in circumstances where he or she has claims to make and views and wishes to articulate, but is on the other end of an application? It seems illogical to prevent a child legally represented in a proceeding from doing so.

[30] In summary, I agree with the statutory interpretation that a child who is the subject of a child protection case is not a party in the case. Absent a judge's order adding such child as a party pursuant to Rule 7(5) of the Family Law Rules, which is always a possibility, such child has only the participatory rights accorded by s. 79(6) CYFSA, namely, to participate as if he or she "were a party". Moreover, if the child meets the pre-condition in Rule 4(7) of having a judge authorize[3] a lawyer to represent the child, then the child is accorded "the right of a party", unless the court orders otherwise. Ultimately, the extent to which a child participates, either as if he or she "were a party", or exercising his or her "rights as a party" is subject to a determination by the court in the particular case. In practical terms, I expect that most of these determinations are not going to be prior to the "participation" activity. Rather, I anticipate that a child will take some step to which a party in the case will object, and the court will be asked to make a ruling. If this turns out to be correct, the extent of a child's participation is a wide open road, subject to someone else trying to put up a roadblock.

Participatory Steps Permitted and Prohibited

[31] What participatory steps by children have courts endorsed or prohibited? Case law has not been well developed in providing examples. As I indicated in Children's Aid Society of Algoma (Elliot Lake) v. P.C., 2017 ONCJ 898, at paragraph [16]:

"The preponderance of case law establishes that a child who meets the pre-requisites in subsection 39(6) [now ss.79(6)] is not a "party" in the proceeding. Unfortunately, the CFSA statute does not state either the extent or limitations of such participation. Case law is only little more helpful… "As if he or she were a party" is devoid of any statutory guidance as to limits."

[32] In the case of C. v. Peel Children's Aid Society, 2018 ONCJ 885, Justice A.W.J. Sullivan of the Ontario Court of Justice permitted a 15 year old youth to commence a child protection application, presumably by filing a pleading in the form of a child protection application, and proceeded to make a temporary care and custody order in favour of the society, even over its objection.

[33] In S.G.B. v. S.J.L., supra, the court imposed some limitations on the child's participation, namely that he was:

"not be permitted to seek to file fresh evidence on the appeal … shall not be permitted to advance the constitutional arguments".

[34] In C.R. v Children's Aid Society of Hamilton, supra, in a procedural ruling, the court came to the:

"conclusion that the Children's Lawyer has an obligation to comply with the Band's request to admit facts, pursuant to rule 22, to produce an affidavit of documents pursuant to rule 19, and to comply with all rules that speak about responsibilities of parties."

The inference from this ruling is that the child's participatory responsibilities (vicariously through the child's OCL counsel), included not only compliance with Rule 22 and Rule 19, but that the converse was also true, namely that the child had the participatory right to seek the same or similar relief against other parties in the case.

[35] In Durham Children's Aid Society v. A.S., supra, the court concluded that the CFSA statute permitted a child to bring a child protection application, although he or she must do so as a "special party" represented by a court approved adult:

"Children have been determined, for the purposes of the law of Ontario, to be "persons" after their birth. And consequently these children would be "persons" for the purposes of bringing an application pursuant to subsection 40(4) of the Child and Family Services Act."

[36] In Children's Aid Society of Algoma v. J.B., 2019 ONCJ 6, a child's participation included an Answer filed by a 13 year old girl through her OCL counsel. The child ultimately testified viva voce and was cross examined. The society in that case did not object to the filing of an Answer by the child and did not appeal the ultimate decision made. However, it should be noted that what was in the child's Answer coincided more or less with what the society was seeking in its application. That is clearly not the situation in the present case before this court where the society and the children are at polar opposites. In dealing with the pro's and con's of a child's Answer in a child protection proceeding I said at paragraph [58] and reiterate in this case:

The Answer is a pleading. It was signed by the child and obviously prepared by her OCL counsel. Answers of subject children in child protection cases are, in my experience, as rare as hen's teeth. They ought to be utilized more by OCL counsel for a number of reasons:

– They are able to set out the child's position or the child's counsel's position to all claims made by each party in the proceeding, thereby clarifying the issues among them.

– They can set out the child's views and wishes quite clearly and distinctly, thereby avoiding the problem of attempting to establish these by hearsay evidence of other witnesses and by attempting to circumvent the rule against hearsay by admissions as to state of mind, which have inherent limitations.

– They save a lot of time, and particularly earlier on in the proceeding, potentially assisting in settlement or at least avoiding the three or more year old case (as here).

– They are a means to ascertain views and wishes of a child with respect to interim issues in a case such as temporary care and custody and interim access.

[37] The statute only refers to the right of a child age at least 12 years to receive notice and to be present at a hearing, or a child under twelve years to be specifically permitted by the court to receive notice and to be present at a hearing.

CYFSA S. 79(4) A child 12 or older who is the subject of a proceeding under this Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing.

CYFSA S.79(5) A child younger than 12 who is the subject of a proceeding under this Part is not entitled to receive notice of the proceeding or to be present at the hearing unless the court is satisfied that the child, (i) is capable of understanding the hearing; and (ii) will not suffer emotional harm by being present at the hearing, and orders that the child receive notice of the proceeding and be permitted to be present at the hearing.

[38] This is unlike a caregiver or a foster parent who has cared for a child continuously for six months prior to a hearing. In the case of such persons, also non-parties in the case, the CYFSA statute spells out in somewhat more detail what participatory steps such persons may take, and even makes provisions for a court to determine if other participatory steps will or will not be permitted.

CYFSA S.79(3) Any person, including a foster parent, who has cared for the child continuously during the six months immediately before 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.

[39] I believe that on the basis of the combination of the statutory provisions in the CYFSA, the applicable Rules in the Family Law Rules, and the existing jurisprudence, that a child's participatory rights in a child protection case is not limited to notice of the proceeding and presence at the hearing. Once the child has legal representation, the child is able to take all of the participatory steps of an adult party litigant, subject to any court imposed limitation on such participatory steps. What steps are will be permitted or prohibited will unfold in time as more of such steps are taken and courts are called upon to rule on them.

Have Recent Legislative and Other Changes Had Any Impact on Child Rights

[40] The CYFSA has replaced the CFSA as the statute that governs child protection litigation in Ontario. The CYFSA is much more concerned with the right of children than was the previous statute, and there are a number of provisions where the court is mandated to consider the views and wishes of a child who is affected by the statute. In C. v Peel Children's Aid Society, supra, Justice Sullivan canvassed those provisions where the court was mandated to consider the child's views and wishes [at paragraph 161]:

"In the CYFSA 2017 the views and wishes of a youth must be considered at the following stages:

• At the Temporary Care Hearing: s. 94(11)
• Placement with a relative s. 94(5)
• Choosing a disposition s. 101
• Making a custody order in a CP matter s. 102
• Access s. 104 and 105
• Care and custody pending appeal s. 121(4)
• Extension of time limits for interim society care (formerly society wardship) s. 122(5)
• Adoption s. 179(2)"

[41] There is also the United Nations Convention on the Rights of the Child. Justice Martinson, in B.J.G. v. D.L.G., 2010 YKSC 44, at paragraphs 3 and 5 sets out the Canadian position on the rights of child:

"There is a United Nations Convention on the Rights of the Child, ("the Convention"). The Convention, which was ratified by Canada, with the support of the provinces and territories, in 1991, says that children who are capable of forming their own views have the legal right to express those views in all matters affecting them, including judicial proceedings. Canada has chosen not to incorporate the provisions of the Convention directly into domestic law because it takes the position that Canadian domestic law complies with the Convention... That is because Canadian jurisprudence provides that in interpreting domestic statutes, Parliament and provincial legislatures are presumed to respect the rights and values set out in the Convention."[4]

[42] Lastly, but not least, are the new provisions in the CYFSA which apparently were so important that they were included as a new Preamble and a discrete Part in the statute, namely Part II entitled "Childrens' and young Persons' Rights". This Part is very detailed and comprises sections 3 to 23 inclusive of the statute and applies throughout the statute. For a flavour of these rights, I reproduce s.3 below:

CYFSA S. 3 Every child and young person receiving services under this Act has the following rights:

1. To express their own views freely and safely about matters that affect them.

2. To be engaged through an honest and respectful dialogue about how and why decisions affecting them are made and to have their views given due weight, in accordance with their age and maturity.

3. To be consulted on the nature of the services provided or to be provided to them, to participate in decisions about the services provided or to be provided to them and to be advised of the decisions made in respect of those services.

4. To raise concerns or recommend changes with respect to the services provided or to be provided to them without interference or fear of coercion, discrimination or reprisal and to receive a response to their concerns or recommended changes.

5. To be informed, in language suitable to their understanding, of their rights under this Part.

6. To be informed, in language suitable to their understanding, of the existence and role of the Provincial Advocate for Children and Youth and of how the Provincial Advocate for Children and Youth may be contacted.

[43] The Preamble in the CYFSA begins with the acknowledgement that:

"…children are individuals with rights to be respected and voices to be heard."

and continues with the acknowledgement of the Government of Ontario that the aim of the Child, Youth and Family Servicers Act, 2017 is:

"… to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child."

[44] Arguably, filing an Answer in a case where the future lifetime consequences for a child are at stake is encompassed within the right to express their own views about matters that affect them. It also may be included in the child's right to "participate" in decisions about services that are or may in the future be provided to them.

[45] It is no secret in the present case that there is a dispute between the society and OCL counsel with respect to what the children have expressed as their wishes at a particular time in the past, and whether those views and wishes have changed. Consequently, this appears to be the reason why the society is opposing the filing of the childrens' Answer as it will inevitably be a document that the court may have to consider in its mandatory consideration of their views and wishes. However, as OCL counsel retorts, the views and wishes of the children will still have to be proved by admissible evidence, whether of the society or of other parties.

[46] Of more concern is the argument of OCL counsel that the children wish to advance claims relating to access, both sibling access, as well as access to other persons of which they wish to be access holders. For example, access to their mother and their grandmother. This has not been pleaded by anyone – yet. Moreover, such access claims would be better made by the person who are seeking them, not by someone on their behalf. But the children cannot make such access claims as they are not parties. The normal way in which claims are made in these CFSA proceedings are in pleadings. Permitting the children to file an Answer is an appropriate way to permit such claims be before the court for adjudication. It may be inconvenient for the society but a child is not a piece of furniture. A child, especially of the ages of these children have established family relationships they wish to preserve and should be accorded the opportunity to oppose a society who wishes to extinguish those relationships by seeking an order of no access and adoption. Filing an Answer and Plan of Care would be a way to do this, in fact in a way that is orderly, with a Form that is already in use, and is familiar to the court as well as to other litigants and is endorsed by the Family Law Rules as an acceptable way to respond to claims and to make claims. The society's assurance in its argument on this motion that the society will be amenable to the court making a sibling access order falls far short of the court adjudicating this claim.

[47] The Accordingly, in response to the first question, I rule that the children in this case have a participatory right that includes the filing by them of an Answer and Plan of Care in this Status Review application. This leads to the second question of whether I should permit them to file their Answer at this point in the litigation.

Should the Court Permit a Late Filing of an Answer by the Children

[48] The CYFSA is said to provide a complete procedural code in child protection cases. While I agree that this is mostly correct, the Family Law Rules supplement the procedure to be applied, and where there are deficiencies or interpretation issues, case law also helps. However, nowhere in any of these three resources is there any clear and specific prohibition against a child who is the subject of the proceeding, filing an Answer. There are, as I have mentioned, some instances in reported cases where the courts have expressly or impliedly permitted a child to file either an Application or an Answer. In what circumstances should this be permitted? And should a court permit a child to file an Answer late?

[49] Firstly, the court has to have authority to grant such leave if, as in the present case, it is being requested. Rule 3(5) gives a general authority to court to lengthen or shorten any time set out in any Rule. However, it qualifies this power in child protection cases by permitting a lengthening of a prescribed time only if the best interests of the child requires it. Rule 33(1) and Rule 33(3) have to be read together with Rule 3. [Only relevant portion of Rule 33(1) included below]:

Rule 3(5) The court may make an order to lengthen or shorten any time set out in these rules or an order, except that it may lengthen a time set out in subrule 33(1) (timetable for child protection cases) only if the best interests of the child require it. O. Reg. 114/99, r. 3(5).

Rule 33(1) Every child protection case, including a status review application, is governed by the following timetable:

Step in the Case	Maximum Time for Completion from start of Case
Service and Filing of Answers and Plans of Care	30 days

Rule 33(3) The court may lengthen a time shown in the timetable only if the best interests of the child require it. O. Reg. 114/99, r. 33(3).

[50] The court has the authority to lengthen the time for the filing of an Answer but, in a child protection proceeding, only if it is in the child's best interests to do so. I speculate that when these Rules were first made, the contemplation of their makers was that the Answer they were referring to, was an Answer, or Answer and Plan of Care, of a party in the case, not an Answer and Plan of Care of a non-party child. However, it is clear that the court has to first consider the best interests of the child before it extends the time to file an otherwise late answer.

[51] The very first injunction to a person considering a child's best interests is to consider the child's views and wishes and to accord them due weight in accordance with their age and maturity.

CYFSA S. 74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall, (a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

[52] The children's views and wishes may be on a variety of issues. In this motion, I must consider their views and wishes on the issue in this motion, that is, permission for late filing of their Answer and Plan of Care. As they have court ordered legal representation, and it is their OCL counsel who is putting forward their request, I inevitably conclude that it is their wish that I permit them to do so. Moreover, they are not neonates but teens and pre-teens, of sufficient years to have accorded to their wishes on this issue considerable weight. I have no evidence that any of these children suffers from immaturity to warrant discounting such weight.

[53] This does not end the inquiry. The filing of an Answer and Plan of Care is a litigation step. It may have adverse consequences for others involved in the litigation. In this case, the applicant society may be in that category. However, the society argument is not that it is caught by surprise, or that it is now virtually the 11th hour in the proceeding with no time to prepare a proper reply to the Answer and Plan of care and its claims. It is that the Answer and Plan of care will circumvent the jurisprudence that holds, absent consent of all parties, that OCL counsel cannot state to the court, the childrens' views and wishes. The society concern is that the views and wishes of the children as contained in the Answer and Plan of Care which they seek to file, does just that, and is contradictory to the views and wishes expressed by the children to others, different views and wishes that the society hopes to introduce through admissible hearsay in the trial.

[54] I do not give much weight to any prejudice argument that the society may be advancing. It must be remembered that this status review case is over 4 ½ years old and regardless of which party (or anyone else) is responsible for this sad state of affairs, the society has known for a long time the position of the children. OCL counsel was appointed in February of 2015, over four years ago, and has made no secret of the wishes of his child clients. So the society is not caught by surprise.

[55] The circumventing of the prohibition against counsel for a child stating the child's wishes is clearly not absolute. In several cases, this has been permitted on the consent of all parties. Moreover, children's views and wishes have come before the court in a variety of other ways. They have been recited in Voice of the Child (VOC) reports, unquestionably hearsay. They have been admitted in the affidavit or viva voce testimony of a social worker assisting an OCL counsel, or of a society worker testifying on behalf of a society when the child did not testify. They have been admitted under the "state of mind" exception to the Rule against hearsay. They have been reported to the court by assessors in assessment reports ordered by the court under s.98 CYFSA (formerly s.54 CFSA). They have clearly come before the court in those cases where a child has been permitted to file, or the court has acquiesced in the filing of a pleading. In some cases, the child has testified viva voce as to those wishes. In some reported cases, judges have simply relied on OCL counsel telling the court what that counsel's child client's views and wishes were on a particular issue.

[56] With respect to the concern that an Answer and Plan of Care may set out views and wishes that are different than those that a child may have expressed at another time or times, perhaps even contradictory ones, I believe that is a matter to be grappled with by the trial judge after hearing all of the evidence and after reading the child's Answer and Plan of Care. It is not a novel occurrence that views and wishes change, particularly over the course of four or five years of litigation. One sees this often in the criminal courts where a female victim of an assaultive partner has views and wishes she recounts to the police when she is in the throes of the assaultive incident, and the views and wishes she expresses to the court in her partner's assault trial a year later when she is more calm and reflective of the consequences for her and for any children, of his conviction. Judges have to consider when and in what circumstances a child's views and wishes were expressed. The public has to accept that judges are able to assign to them the proper weight.

Summary

[57] At the end of the day, I find that it is in the best interest of the children that I permit them to file their Answers and Plans of care late. There is no argument made by any party that filing these at this time will cause delay in the proceeding. There are trial days already scheduled and these will not change, nor I imagine will more days be needed on account of a child's Answer being filed in the meantime. The only change I foresee is that the Trial Record will have to include some additional materials. It is better for the court to know what claims it is actually dealing with and to have the claims formally made in the proceeding. It is equally important for a child whose entire future life is likely to be profoundly impacted by any decision ultimately made in the proceeding has the opportunity to have his or her voice heard and considered by the court before that decision is made. Even more so when the children are of the ages that they are at present.

[58] Accordingly, OCL counsel is permitted to file an Answer and Plan of Care for the children in this proceeding. He has ten days to do so from the release of these Reasons. My preference is that he file a separate Answer and Plan of Care for each child, just as it is my preference that the society would file a separate application for each child. However, I do not insist on this as it would denude our forests.

Released: August 13, 2019

Signed: Justice John Kukurin

Footnotes

[1] The father of the two older children is not participating. He was charged with a sexual offence against another unrelated female and stood trial, was found guilty, but before any sentence was imposed, changed his mind about his guilty plea, and subsequently absconded to somewhere in Quebec. He has not seen the children for years. The father of the youngest child is not identified and is not a party.

[2] Rule 1(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure. O. Reg. 114/99, r. 1(7).

[3] This has been long established, and is referred to in a number of judicial decisions which are detailed in the text of these Reasons. A child may be made a party by a court but jurisprudence indicates that it is rarely done.

[4] There is always the question of whether a judge authorizing a lawyer to represent a child is equivalent to a judge directing that legal representation be provided for a child.

[5] Convention on the Rights of the Child (the CRC) 28 May 1990, 1577 UNTS 3, CANTS 1992 No.3