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: 2020-07-23

Court File No.: Toronto C11637/17

Between:

Children's Aid Society of Toronto Applicant

— AND —

M.D. (Mother) and W.W. (Father) Respondents

— AND —

S.D. (maternal grandmother, moving party on motion)

Before: Justice Robert J. Spence

Heard on: July 22, 2020

Reasons for Judgment released on: July 23, 2020

Counsel

• Ms. Katie Skinner — counsel for the applicant society
• Ms. Stephanie Okola — for S.D., moving party on the motion
• Mr. Aron David — for father (in default, not present for the motion)
• Mother not appearing (in default)
• Mr. Wiri Kapurura — counsel for the Office of the Children's Lawyer, legal representative for the child, A.

Judgment

R. J. SPENCE J.:

INTRODUCTION

[1] This is a motion brought by the maternal grandmother to be added as a party to this proceeding.

[2] At the conclusion of argument, I dismissed the grandmother's motion with reasons to follow. These are my reasons.

[3] The motion was opposed by the Children's Aid Society of Toronto (society) and by the Office of the Children's Lawyer (OCL). Although the father is in default, his lawyer advised that the father was also opposed to the grandmother's motion.

[4] The child, who is eleven and one-half years old was brought to a place of safety and has been in the society's care since October 2, 2017.

[5] On August 29, 2018 a final order was made placing A. in the society's interim care for 6 months.

[6] On March 25, 2019, a further final order was made placing A. in the society's interim care for 4 months.

[7] On the present status review application, the society is seeking an order to place the child in the extended care of the society. It appears that the foster father may now be planning to adopt the child.

[8] Neither parent has filed an Answer or Plan of Care in respect of the status review application.

[9] The child has now been in care for about 33 months, a period well in excess of the statutory time limit of 24 months, pursuant to paragraph 122(1)(b) of the Child, Youth and Family Services Act (Act).

THE CHILD

[10] The child has been in the same foster home since he was brought into the society's care.

[11] The child's lawyer has met with A. a total of 8 times (6 times in person and twice by video), most recently on July 19, 2020.

[12] The child is reportedly doing well in school. He will be starting Grade 6 in September, 2020.

[13] The child has disclosed in the past to his lawyer that his visits with the maternal grandmother was causing him stress.

[14] His lawyer states that A. does not want to move from his foster home and reside with his grandmother, although it does appear that he may wish to have some sort of relationship with her. He has had no visits with the grandmother since March 2020.

[15] Mr. Kapurura says that the child has adjusted well in the foster home and is very attached to the foster father and the other children in that home. He refers to everyone in that home as "my family".

[16] The child continues to see his therapist on a weekly basis, by Skype. The therapist has reported to the society that if A. were to leave the foster father's home it would be "psychologically devastating" for him. He has told his therapist that he wants the grandmother to be his "nana" not his caregiver. He wants to remain with the foster father.

[17] The society is supportive of the grandmother remaining in A.'s life, but that her relationship with A., ought to be in a way that permits A. to develop trust in the grandmother. This, according to both the society as well as A.'s therapist, will more likely happen if the grandmother takes on a strictly "nana" role and gives A. time to develop trust in her.

THE LAW ON ADDING PARTIES

[18] The starting point is Subrule 7(5) of the Family Law Rules (Rules), which states [my emphasis]:

PARTY ADDED BY COURT ORDER

(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).

[19] The use of the words "may order" in the wording of this subrule makes it clear that the court has a discretion to add a person if that person "should be a party".

[20] In the oft-cited case of Children's Aid Society of London and Middlesex v. S.H., S.W. and D.R., 118 A.C.W.S. (3d) 672, 16 O.F.L.R. 126, [2002] O.J. No. 4491, [2002] O.T.C. 916, 2002 Carswell Ont 4048 (Ont. Fam. Ct.), Justice Grant Campbell set out the following principles for the court to consider before adding a party to a child protection proceeding:

(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.

[21] The court in Children's Aid Society of London and Middlesex v. J.P., 95 A.C.W.S. (3d) 316, [2000] O.J. No. 745, [2000] O.T.C. 139, 2000 Carswell Ont 718 (Ont. Fam. Ct.), added one more principle:

(v) 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).

[22] It is not necessary to satisfy all the criteria before the court will add that person as a party. See Children's Aid Society of Algoma v. C.V., 2011 ONCJ 83.

ANALYSIS

[23] I note at the outset that the grandmother does not have a legal interest in this proceeding. She does not fall within the definition of a "parent" under subsection 74(1) of the Act. An order cannot be made either in her favour or against her.

[24] The grandmother's request has too many hurdles to permit her motion to succeed.

[25] The primary reason her motion fails is the delay that would result if she were added as a party to this proceeding.

[26] Prior to the grandmother advising the society that she intended to bring this motion, the society was on the verge of seeking a final order on default, placing A. in extended society care.

[27] As I stated, the mother and the father are both in default. And the only reason the society delayed in bringing its default motion was to allow the grandmother to bring her within motion.[1]

[28] The child has been in care 9 months beyond the statutory time limit. Even if the court were satisfied that the grandmother's motion might have some merit if she were added as a party then, by definition, this proceeding would go on for potentially many more months, possibly longer.

[29] At the very least, instead of coming to an end almost immediately, the case would take on a new life of its own, extending into pleadings, extensive society documentary disclosure, possibly motions, then moving onto a trial assignment court before then being set down for trial. I estimate that at least 6 to 12 months would be added to the timeline of this litigation if the grandmother were added as a party.

[30] There is a reason for the statutory time limit referred to above. And courts cannot lightly ignore paragraph 122(1)(b) of the Act. While the court does have authority to make orders extending the time in care (see subsection 122(5)), that extension can run only for an additional 6 months which, in this case would allow A. to remain in care for 30 months. He has already exceeded that limit by 3 months.

[31] Accordingly, the grandmother's motion would run counter to principle (ii) in the London-Middlesex case, namely, whether the addition of the party would delay or prolong proceedings unduly.

[32] Apart from the time-limits analysis, the court's decision to refuse the grandmother's motion is based on the grandmother's failure to satisfy the court on the other principles enunciated above.

[33] Principles (i) and (iv) set out in London-Middlesex are primarily directed to considering what is in the best interests of a child.

[34] In determining best interests, the court must have regard to the various criteria set out in subsection 74(3) of the Act.

[35] The grandmother would argue that clause 74(3)(6)(vi) applies, namely, the child's "relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community". The grandmother is a "relative" and a "member of the child's extended family".

[36] However, the child does not have "emotional ties" to the grandmother, at least not strong positive emotional ties. The evidence from his therapist discusses the highly negative impact that forced in-person contact with the grandmother would have on him.

[37] The evidence surrounding the history of in-person access between A. and the grandmother reveals ever-increasing stress and anxiety for A.

[38] All the remaining factors set out in subsection 74(3) of the Act which are relevant to the facts of this case favour a dismissal of the motion. Perhaps the most important factor is what the child himself wants. And not just what he wants, but the negative impact on him were he to be told that the grandmother is now back in his life in a way that could possibly result in being removed from his current home and placed in her care.

[39] Accordingly, while the grandmother may be "capable of putting forward a plan" (principle (iv) in London-Middlesex), her plan is not in the best interests of A.

[40] Nor is the addition of the grandmother "necessary to determine the issues" (principle (iii) in London-Middlesex). As I noted earlier, the parents are both in default. The society is prepared to immediately move toward a default judgment. The issues are squarely before the court. Adding the grandmother as a party is not necessary in order to bring this case to a conclusion.

[41] While I do not doubt the grandmother's sincerity and good intentions in bringing this motion, A. has made it very clear – and the evidence before the court supports this – that he very much requires the emotional security that comes from knowing he can remain where he is, with his "family". The last thing that A. needs is a court decision which conveys to him that there is another person standing in the wings waiting to possibly remove him from his family.

CONCLUSION

[42] The society advised the court that it does prefer to bring the father on board with a signed Statement of Agreed Facts. The society is currently working with the father's lawyer to see if this can be negotiated. While it is generally preferable to have parents sign onto an agreement, in this case those negotiations must take a back seat to bringing finality to the litigation.

[43] At the conclusion of argument on this motion, I told both the society counsel and father's counsel that I will give them one week to finalize a Statement of Agreed Facts. At the end of that week, regardless of the outcome of those negotiations, the society is to bring its default motion to the court for consideration.

[44] The society may file its Statement of Agreed Facts with the court by 14B chambers form, failing which the matter will return before me on August 6, 2020 at 9:30 a.m. for a default hearing, by teleconference.

[45] At the society's request there will be an order redacting all references to the name of the foster father in the pleadings filed with the court and replacing his name with initials.

[46] The grandmother's motion to be added as a party is dismissed.

Released: July 23, 2020

Signed electronically

Justice Robert J. Spence

Footnote

[1] I do not criticize the society for attempting to facilitate the grandmother's wish to bring a motion. However, it does appear to the court that once a child's time in care has exceeded the statutory time limit, the primary concern for the society should have been bringing the litigation to an end, rather than allowing it to remain outstanding in order to accommodate a non-party.