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 and is subject to subsections 87(8) of the Act. This subsection and subsection 142(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 87(8), read as follows:

87. - (7) 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) 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) 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.

134. - (11) No person shall publish or make public information that has the effect of identifying a witness at or a participant in a hearing, or a party to a hearing other than a society.

142.— (3) 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

In the Matter of the Child, Youth and Family Services Act, S.O. 2017, c.14, Schedule 1

Between:

Children's Aid Society of the Districts of Sudbury and Manitoulin Robin Saari, for the applicant

— And —

E.L. Self-represented

C.S. Self-represented

J.B. and S.B. (Paternal Grandparents) Samantha Prescott for the Paternal Grandparents

Heard: December 18, 2020

Judge: John Kukurin

Reasons for Decision

[1] Motion for Party Status

These are my Reasons on a motion (at Tab 68) brought by the paternal grandparents to be added as party Respondents in this proceeding. Their motion claim is opposed by the Respondent mother and the Respondent father. The Applicant society takes no position on the motion claim. It does so despite the fact that it has made a similar claim in its own motion (at Tab 66) which is not before the court today. The society is not proceeding with its motion claim to have the paternal grandparents added as parties, but it has not withdrawn it either.

[2] Service of Motion

Service of the motion on the mother and father became an issue. The court file reflects that each was served on October 8, 2020 by Nicole Gagnon-Roy, who appears to be a process server. On being apprised of the existence of this proof of service, the parents conceded that they had, in fact, been served.

[3] Evidence on Motion

The evidence on this motion was the affidavit of the paternal grandmother (at Tab 69). In it she made some reference to an earlier society affidavit in which the affiant, the child protection worker, submitted that it was in the best interests of the child that the grandparents be added as parties. There was apparently some additional affidavit material that some parties claimed had been filed at Tab 72 of the continuing record. However, the last tab in the continuing record before me was Tab 69. Accordingly, I did not deal with any evidence beyond Tab 69 and I asked counsel not to refer to any of it. The mother and father did not file any evidence on this motion, and confirmed that they had not.

The Background

[4] Factual Circumstances

The factual circumstances of the paternal grandparents and their involvement in this child protection proceeding is summarized thus. The paternal grandmother is the mother of the child's father. The child, a girl, was age 2 this past summer. She was apprehended at birth (July 2018) and placed in a society foster home by a different society (Algoma society) than the present one. The file was then transferred to Sudbury and the current society (Sudbury and Manitoulin) quickly obtained an order (in Aug 2018) placing the child in the temporary care and custody of 'kin' placement being an aunt and uncle (the aunt being the sister of the father). For reasons unknown to this judge, but I am sure are amply explained in evidence elsewhere in the Continuing Record, this placement did not last. The child was removed by the society which obtained a temporary care and custody order in its favour and placed the child in a foster home of the society (in Sept 2018).

[5] Grandparents as Caregivers

The paternal grandparents came forward some time after this point and tendered themselves as candidates for care of the child. They were evidently persuasive as the society amended its claim in its child protection application to seek a disposition of placement with these grandparents, subject to a six month supervision order. The society conducted a 'kin' assessment of the grandparents, which was positive, and brought a motion which resulted in an order (in July 2019) for temporary care and custody to the grandparents. The child has been in their care and custody now for about 17 months.

[6] Society's Assessment

The paternal grandparents are touted by the society to be stable, caring and competent custodians and caregivers. They in turn, appear to work well with the society personnel. If I am not mistaken, I inferred that the grandparents had long term plans and intended to raise the child to adulthood. This may not be correct as the society amended it application claim a second time in November 2019, this time seeking extended society care, with no claim for access by anyone.

[7] Society's Third Amendment

Semi-finally, to bring the matter to almost full circle, the society amended its application a third time in January 2020 to seek an order that the parents have no access, but that the grandparents do have access at the society's discretion.

[8] Recent Developments

And finally, the society indicated at this motion that it was considering placing the child with the parents on a temporary basis, and may have done so but for a report of a recent incident allegedly involving the parents which it must now investigate. The investigation will apparently inform the direction the society takes.

[9] Parents' Second Child

One last item of interest is that the mother and father reside outside of the territorial jurisdiction of this society and have recently had a second child who resides in their care and custody. The society having jurisdiction where they reside (Simcoe Society) has been in contact with the Sudbury Society, and notwithstanding any concerns communicated to the Simcoe society, it has not taken any steps to remove the new child from the parents.

[10] Motion Context

It is in this abbreviated context that the motion to be added as parties is made by the grandparents.

The Law

[11] Governing Legislation

The Child, Youth and Family Services Act (the CYFSA) governs child protection in Ontario. It has a procedural code that jurists have often said is a complete one for child protection cases. I add that The Family Law Rules have a major role in family law cases, of which, child protection cases form a significant part.

[12] Statutory Parties

Section 79(1) CYFSA states who are the parties in a CYFSA case.

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.

[13] Grandparents Not Statutory Parties

It was not argued before me that the grandparents make it into this list of statutory parties. I will return to this below.

[14] Participatory Rights

Section 79(3) specifies other persons, who, while not granted Party status, are given statutory participatory rights. These rights are not the same rights as a party has, but may be sufficient for some persons. Moreover, the judge hearing the case may grant leave for such person to take a further part in the hearing.

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.

The paternal grandparents appear to fall within this category of participants. Based on the evidence, they have had, and still have, care of the child for much longer than six months.

[15] Grandparents' Desire for Party Status

However, the grandparents do not appear to be satisfied with this 'participatory' status. They want to be parties.

[16] Family Law Rules - Adding Parties

The Family Law Rules permit the court to add persons as parties, specifically Rule 7.

Rule 7. (1) A person who makes a claim in a case or against whom a claim is made in a case is a party to the case. O. Reg. 114/99

(2) For purposes of a motion only, a person who is affected by a motion is also a party, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support. O. Reg. 114/99, r. 7 (2).

(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child, Youth and Family Services Act, 2017, shall be named as a party, unless the court orders otherwise:

1. A case about custody of or access to a child.
2. A child protection case.
3. A secure treatment case (Part VII of the Child, Youth and Family Services Act, 2017). O. Reg. 114/99, r. 7 (4); O. Reg. 298/18, s. 7 (1, 2); O. Reg. 535/18, s. 1.

(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).

[17] Analysis of Rule 7(1)

Rule 7(1) should be scrutinized. It can refer potentially to a number of individuals, especially in a case where there are multiple parties already. The subrule ostensibly refers back to the time that the initial application was made (July 2018). However, there is no reason to restrict the application of this subrule only to that time. In the present case, the grandparents are the legal caregivers and custodians, albeit temporary ones. This was a role assigned to them by the court, specifically the order of Justice Serre dated September 24, 2019. They cannot be divested of this temporary care and custody except by another order of the court, or if the society removes the child from them in what was known as an "apprehension", a term that is still in vogue in some places. If the society were to do this, I expect that it would first obtain a warrant from a justice of the peace. In fact, the society seems to be going by the other route, namely to get an order from the court, again a temporary one, that would place the child with the parents. In fact, it has deferred proceeding with that motion claim only because it must first investigate the recent incident referred to above. However, it has shown its intention to remove the child from the grandparents' care in its thrice amended application which seeks extended society care and would leave the grandparents with only access to the child, and that, in the discretion of the society. From any reasonable standpoint, the society is a person who is making a claim, although not a direct one, against the grandparents. Pursuant to subrule 7(1), the society ought to have named the grandparents as parties in its thrice amended child protection application (at Tab 56).

[18] Analysis of Rule 7(2)

Rule 7(2) also deserves some scrutiny. The society has indicated that it has a motion (almost) ready for hearing. The claim in this motion is basically to take temporary care and custody away from the grandparents and to give it to the parents – through the power of the court. In fact, it wanted its motion to be heard before the motion of the grandparents for party status was heard. The only reason for that request that I can fathom is a strategic one, so that the grandparents would not be parties to its motion to vary temporary care and custody, and would thus be deprived of opposing this claim by participating in that motion. However, subrule 7(2) clearly makes the grandparents parties to the society's motion and the grandparents should not only be shown as parties (to the motion only) but should be served just as any other respondent in any motion.

[19] Analysis of Rule 7(4)

Rule 7(4) provides yet another argument favouring party status for the paternal grandparents. They are persons who have care and control of the child. I believe that technically, they have "temporary care and custody" but my interpretation is that this includes "care and control" I do not see the supervision order of the society, nor the manifold terms and conditions that attaches to this temporary care and custody, as detracting from the care and control that is necessary for this subrule to apply. The grandparents are not "foster parents" of the child as that term is defined in the CYFSA in s.2

S.2 "foster care" means the provision of residential care to a child, by and in the home of a person who,

(a) receives compensation for caring for the child, except under the Ontario Works Act, 1997 or the Ontario Disability Support Program Act, 1997, and

(b) is not the child's parent or a person with whom the child has been placed for adoption under Part VIII (Adoption and Adoption Licensing),

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

[20] Application of Rule 7(4)

Rule 7(4) applies in a child protection proceeding. The present proceeding is just that. Accordingly, from the perspective of this subrule, the society should have named the grandparents as parties, at the very least, in its thrice amended child protection application.

[21] Rule 7(5) - Court's Discretion

Rule 7(5) allows the court to add as a party any person who should be a party. The court can also give directions for service on such person. In light of subrule 7(2) and subrule 7(4), it is a reasonable inference that the grandparents should be added as parties to the thrice amended child protection application.

[22] Statutory Definition of "Parent"

The foregoing is not the entirety of the statutory law. The CYFSA includes in its list of who are parties in a child protection application, a "parent". One would normally interpret this to mean the biological mother and the biological father. Not so. The CYFSA has a much expanded list of who it includes as a "parent" of a child. It behooves the court as well as the parties in this case to see if the paternal grandparents fall within any of the descriptions of who is a statutory parent.

[23] CYFSA Section 2(2) - Definition of Parent

Some explanatory digression is needed here. There are two provisions that deal with "parents'. The first is found in s.2(2) of the CYFSA. This section applies throughout the CYFSA statute.

S. 2(2) Unless this Act provides otherwise, a reference in this Act to a parent of a child is deemed to be a reference to,

(a) the person who has lawful custody of the child; or

(b) if more than one person has lawful custody of the child, all of the persons who have lawful custody of the child, excluding any person who is unavailable or unable to act, as the context requires.

In the present case, at the present time, the paternal grandparents not only have custody, but also have care of the child under the extant temporary care and custody order of Justice Serre. It is thus "lawful custody" that they have.

[24] CYFSA Section 74(1) - Expanded Definition of Parent

But s. 2 of the CYFSA is subject to the qualification' " Unless this Act provides otherwise …" In fact, there is another provision that describes, or alternatively defines who is a parent. It is s.74(1) CYFSA.

74 (1) In this Part,

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

1. A parent of the child under section 6, 8, 9, 10, 11 or 13 of the Children's Law Reform Act.

2. In the case of a child conceived through sexual intercourse, an individual described in one of paragraphs 1 to 5 of subsection 7 (2) of the Children's Law Reform Act, unless it is proved on a balance of probabilities that the sperm used to conceive the child did not come from the individual.

3. An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.

4. In the case of an adopted child, a parent of the child as provided for under section 217 or 218.

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

6. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual's family, or has acknowledged parentage of the child and provided for the child's support.

7. An individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.

8. An individual who acknowledged parentage of the child by filing a statutory declaration under section 12 of the Children's Law Reform Act as it read before the day subsection 1 (1) of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 came into force; ("parent")

[25] Analysis of Section 74(1)

The first thing to note is that these s.74 definitions of "parent" applies to Part V of the statute. Part V deals with child protection applications, of which this case is one. The second thing is that it may impact the description in s.2(2) of the Act. It is incumbent on the court to determine if the s.74 definitions of "parent" provides otherwise than the s.2(2) meanings of who is a parent. The words "provides otherwise" I take to mean "is inconsistent with". The conclusion I reach is that there is no inconsistency in s.74 with s.2(2). In fact, one of the meanings of a parent in s.74 in clause 5, is "an individual who has lawful custody of the child". The grandparents each have that. They may also fall within another definition of s.74, namely clause 7 "an individual who …under …a court order …has custody of the child…" The grandparents have custody under the current temporary care and custody order. Therefore, they have a claim to be parents under both s.2(2) (a) as well as the s.74(1) definition of "parent" in clauses 5 and 7.

[26] Jurisprudence on Grandparental Party Status

This again is not the entirety of the law with respect to parties in child protection proceedings. This is not the first set of grandparents who have wanted in as parties in a proceeding that involved a grandchild. There has evolved a significant amount of jurisprudence that has dealt with this issue, and specifically with grandparental claims for party status.

[27] Established Criteria for Party Status

The first case cited by counsel for the grandparents was CAS of Peel v. K.G., 2012 ONCJ 249, a decision of Justice Pawagi. While this decision is only persuasive authority, it cites other case authorities that have invariably been cited in motions to add parties. Specifically, the case refers to what have become more or less pre-requisites, or factors that court looks at to make their decisions. Briefly put, these are:

From Children's Aid Society of London and Middlesex v. S.H.:

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

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

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

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

From Children's Aid Society of London and Middlesex v. J.P.:

(e) 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).

[28] Section 101(4) CYFSA - Kinship Placements

Justice Pawagi also referred to s.57(4) [now s.101(4) CYFSA] which requires a court to consider a disposition placement with, among others, relatives of the child. The grandparents in this case fall unmistakably within the definition of "relatives". How can the court realistically and reasonably consider the grandparents' plan unless they can advance that plan as parties? Justice Pawagi did grant the grandmother in her case party status even though the grandmother and the mother were adversarial, even hostile, and the grandmother's involvement would likely inflame the mother. Aside from the court's finding in that case that the grandmother had met the pre-requisites set out above, the court ultimately decided the motion on the basis of s.57(4) [now s101(4)] stating: (at paragraph 12(b)):

"But even if I accept that her inclusion may have some negative impact, her addition is necessary to determine the issues, as none of the parties intend to present her plan to the court and thus without her participation the court will be unable to fully consider whether it is possible to place the children with a relative, which the court is required to so pursuant to s. 57(4) of the Child and Family Services Act."

[29] Children's Aid Society of Toronto v. D.E.

The second case cited in support of including the grandparents as parties was Justice Sherr's decision in Children's Aid Society of Toronto v. D.E., 2016 ONCJ 390. Justice Sherr added the grandmother as a party in that case and the rationale of that case was concisely put in the headnote:

"It was necessary to add the maternal grandmother to properly determine the issues in this case and for the court to have the best available information to decide which plan was in the children's best interests. The addition of the maternal grandmother was in the best interests of the children. The children's best interests would be served by a careful examination of the best long-term plan for them. There was a serious risk that this would not happen if the maternal grandmother was not added as a party. The maternal grandmother's interests would not necessarily align with the mother's. The maternal grandmother should have the opportunity to determine how to best put forward her plan and test the Society's plan. It was unlikely that the parents would be able to put forward a viable plan in the foreseeable future for the children. The maternal grandmother was presenting a plan that warranted serious consideration. The Society provided no evidence to justify delaying the addition of the maternal grandmother as a party for the purpose of awaiting the results of her police interview. There was no indication at this point that she was suspected of harming or aiding in the harm of the children."

[30] Appellate Guidance - Not All Factors Required

I add that the current appellate view seems to be that not all of the above factors need be present for the court to add a party in a child protection proceeding. The Ontario Court of Appeal stated in 2017 in the case of A.M. v. Valoris pour enfants et adultes de Prescott-Russell, 2017 ONCA 601 [at paragraph 24] "It is not necessary for all factors to favour the person seeking party status for the court to add him or her"

[31] Jurisprudence Split

It is fair to say that the law with respect to adding parties in child protection proceedings, despite several appellate pronouncements on the subject, is still split. There are a number of decisions that go either way. However, circumstances differ in each case; so does the evidence.

Decision on Party Status

[32] Grandparents Meet Prerequisites

In the present case, I am satisfied that the paternal grandparents have met the "pre-requisites" set out in paragraph [27] above. They have a legal interest in that an order can be made in their favour. They will be able to put forward their plan for the child, and to do so much more fulsomely and with more detail than if they were not parties. The argument that the society can put forward the plan of the paternal grandparents may have had some traction in a prior application, but the present one is clearly for extended society care, which is diametrically opposed to the plan that the grandparents apparently want to put forward. Even were the society to backtrack, the grandparents would justifiably be suspicious of the society's motivations and its multi amendments to what it is seeking. Moreover, the society's position currently seems to favour the parents, a position that is opposed to that of the grandparents. Section 101(4) places an onus on the court to consider kin as potential placements. The paternal grandparents are 'kin' in the sense that they are included among the placements that the court is directed to consider. Only the grandparents will put that placement plan forward in this case. So the participation of the grandparents as parties is necessary. Finally, the court of appeal makes it clear that the overarching factor to consider in determining whether to add a person as a party is the best interests of the child. The facts in this case is that the parents have never, to date, parented the child [clearly not for lack of trying I might add] whereas the paternal grandparents have – for 1 ½ years now, and on the evidence presented, have done an admirable job so far. I would say that the best interest of the child, particularly s.74(3)(c)(viii), would be served by adding the grandparents into the mix of parties in this case.

[33] Statutory Basis for Party Status

In addition to the jurisprudentially established criteria for adding parties under the Family Law Rules, there is also the fact that these grandparents are statutory "parents" by virtue of several criteria under the CYFSA. If they are added as parties, they should first be added for the reason that they have a right to be parties by virtue of the statute rather than for any other reason or reasons. The extensive provisions of the CYFSA for who qualifies as a parent means that a person may be a parent at one point in time, may not be at another, and may be at yet another. Circumstances change in child protection proceedings and as changes occur, they may trigger the commencement or termination of "parental" status.

[34] Order Granting Party Status

For the foregoing reasons, I order that the paternal grandparents are added as parties in this child protection proceeding by virtue of their qualifications as being statutory "parents". If I am incorrect in this determination, then they are added as well for the additional reasons above that they should be added under the Family Law Rules, and that they meet the criteria for being added as established in the jurisprudence.

Delay

[35] Delay Considerations

I note that I have not addressed one of the oft considered criteria for adding a party. This is whether the addition of a party will delay the proceeding. This omission was deliberate as delay is a factor in this case. My initial inclination was to limit the grandparents to participation in the disposition phase only. In fact, if I understood their counsel, the issue of disposition is all that they wanted party status for. It may be that this is all that they are going to address.

[36] Procedural Concerns

However, in reviewing this case, I note several matters that, in my view, do not accord well with how a child protection case should proceed.

[37] Finding Issue Not Resolved

Firstly, and most importantly, there is the issue of whether the child in this case is a child in need of protection. The child was removed (apprehended) on July 14, 2018. It is now December 2019. In the intervening 1 ½ years, there does not appear to have been much effort by anyone to set this finding issue before the court for a judicial determination. This is despite the very distinct directive in s.96 CYFSA

S.96 Where an application is made under subsection 81 (1) or a matter is brought before the court to determine whether a child is in need of protection and the determination has not been made within three months after the commencement of the proceeding, the court,

(a) shall by order fix a date for the hearing of the application, and the date may be the earliest date that is compatible with the just disposition of the application; and

(b) may give such directions and make such orders with respect to the proceeding as are just.

The onus in this section is placed on the court and it clearly shares in the blame, despite the slow downs brought about by the pandemic. However, the statutory mandate on setting a finding hearing was activated in September 2018, long before even one Covid-19 virus particle was known to exist. I see little reason why such a hearing has not been held and even less reason why it has not been scheduled. The mother and father are quite right in their indignation that this pivotal finding issue is stalled. And it is pivotal as, without such a finding, the case ends and the child must be returned to the mother and father. The society, which is the party that has carriage of this case, is equally to blame for this state of affairs. The parents, especially the mother, has equally contributed to this delay by self representing in a case where they should have counsel, by antagonizing pretty well everyone she encounters, including several judges who have had some role in this case, and by failing to provide factual evidence that is relevant to the issues that the court must ultimately decide.

[38] Child's Development and Attachment

Secondly, the child is now age two years. Developmental processes like attachment and bonding are so notoriously known that courts can almost take judicial notice that these occur. For this child, these processes are taking place, and the longer the delay in a final resolution, the more they will have an impact on that resolution. There seems to be little heed to the desirability of some permanency for this child, and in fact, she has been moved about a number of times already, and the society is now contemplating yet another move. This is not good for the child, and is also not good for the parents, and reflects poorly on the society. I state this despite the obligation on a society to keep re-assessing its position over the elapse of time. The need for a finding becomes more important every day.

[39] Grandparents' Role in Finding Issue

Thirdly, the onus to satisfy the court that the child is in need of protection falls primarily and squarely on the society. However, as the paternal grandparents are being made parties, they may want to have some input into that determination. After all, if the society cannot show that the child is in need of protection, the child must be returned to whoever had charge when the society intervened. I believe it is common ground that this would be the parents. This is not what the grandparents want, so it would be to their advantage to support the society on the finding in need of protection. The society may even seek to withdraw its application, a not altogether surprising move given its history of changes in directions to date. Will the paternal grandparents weighing in on the protection issue unduly delay this case?

[40] Conclusion on Delay

I have to admit that it will delay this case. Having two extra parties cannot but result in further delay. However, I cannot conclude that it will delay this case unduly. For one thing, they have retained counsel. For another, it is unlikely that they will be involved in the way that the parents have been involved that has resulted in an unfocused litigation strategy. Moreover, they may have information that may be relevant to both finding and disposition that the court may want to hear. The fact that no finding date has yet been set persuades me that addition of the grandparents as parties will not result in cancelling a date already set for that hearing and thereby cause more delay. The reality seems to be that this case is little more advanced now than shortly after the child was apprehended.

Notice

[41] Participatory Rights and Notice

I have already stated my belief that the grandparents have participatory rights pursuant to s.79(3) CYFSA. These rights include the entitlement to "the same notice of the proceeding as a party. I have always wondered what that meant, namely whether it was to receive a copy of the application only, or whether it meant receiving all of the documents in the continuing record at the time that party status was granted. While this may be moot as the grandparents not only have participatory rights but also have party rights, there is still the question of how they will conduct themselves procedurally.

[42] Service and Procedural Requirements

I do not see any affidavit of service attesting to service on the grandparents of the thrice amended application (at Tab 56). If the society has not yet served them, it should do so. With respect to all of the other materials in the three volumes of the continuing record, I suggest that counsel for the grandparents specify to the society what material the grandparents want and, once provided, that this suffice as sufficient notice. From the date of service of the thrice amended application on the grandparents, they have 30 days to serve both the society and the parents and to file their Answer. I see no reason to lengthen or to abridge that time. Moreover, the parents have filed Answers. These are not Answers to the present Amended Application at Tab 56. They should consider doing so. The grandparent are entering this case when the parents have filed Answers in which they have made claims. If they wish to respond to such claim by the parents, it is normally done by a Reply [See Rule 10(6)], a form more noted for its absence than its presence.

[43] Mother's Address for Service

As a final observation, I note that the mother formerly had counsel but she has filed a Notice of Change of Representation (at Tab 20) on which her address for service is 7 Laurentian Street, Sudbury. This remains, until a new Notice is served and filed by her, the correct and adequate address to serve documents. It is clear that she no longer resides at that address so she should give notice to all parties, including the grandparents of her correct current address for service – or she should not complain when she has not received documents others have served on her.

[44] Conclusion

I thank the parties and their counsel for their submissions and hope that all will conduct themselves with more alacrity to move this case to a conclusion.

Released: December 20, 2020

Signed: "Justice John Kukurin"

Footnotes

[1] Among those that dismissed motions for party status are R.L. v. Children's Aid Society of the Niagara Region; Catholic Children's Aid Society of Hamilton v. J.O., 2016 ONSC 5677; Children's Aid Society of Toronto v. M.S., 2018 ONCJ 14; CAS of Sudbury and Manitoulin v. N.G., 2008 ONCJ 535

[2] S.74(3)(c)(viii) - the merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

[3] The parents have during this case, allegedly hired a private investigator to follow society personnel, have audio and video recorded society personnel and visits, have made public the names and addresses of society workers, have been involved in interspousal violence which resulted in criminal charge against the mother, have turned on family members that they had previously presented as potential caregivers, and these as well as other conduct have led to orders by this court placing more restrictions on the mother's access, then suspending it entirely, the issue of a No Trespass order from the society prohibiting her from its property, and a finding by this court that she was in contempt. In a previous endorsement, the judge referred to her saying, in my view, overcharitably "She is a difficult client"