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.

(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.

(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.

ONTARIO COURT OF JUSTICE

CITATION: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. D.B., 2021 ONCJ 639

DATE: 2021-10-18

SUDBURY COURT FILE No. 237-20

BETWEEN:

CHILDREN’S AID SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN, Applicant,

— AND —

D.B. M.F.P. G.H. Respondents.

S.L. Motion Applicant

Before Justice John Kukurin Heard on October 1, 2021 Reasons for Judgment released on October 18, 2021

Ms. Robin Saari....................................................................... counsel for the applicant society Mr. Trent Falldien....................................................... counsel for the respondent mother, D.B. Ms Melissa Sullivan................................................ counsel for the Respondent father, M.F.P. Mr. G.H. ................................................. Respondent father (Not present - service dispensed) Mr. Adam Lake........................ counsel for the Paternal Grandmother/Motion Applicant, S.L.

KUKURIN J.

[1] These are my Reasons for my decision on the claim of the motion applicant for an order granting her party status in the child protection application before this court, or alternatively, enhanced participatory rights. For convenience and description, I refer to the motion applicant as the PGM as she is a paternal grandmother.

Issues in this Motion

[2] The motion for party status raises a number of issues among which are:

[3] Is the PGM a statutory party by virtue of falling within the ambit of the definition of a “parent” set out in the Child, Youth and Family Services Act (the ‘CYFSA”), even though not named as a party by the applicant society?

[4] Where, as here, the PGM is a person to whom this court has granted temporary care and custody of her grandchildren, and she has carried out this role for 10 months to date, does this affect the court’s decision on her claim for party status and if so, how?

[5] Is the PGM a person to whom the court should grant party status in this proceeding pursuant to the Family Law Rules?

[6] If the court does not grant party status to the PGM, should the court grant to her “enhanced” participatory rights in this child protection proceeding?

[7] If the PGM is granted party status, or enhanced participatory rights in the child protection application, should the court impose any restrictions or limitations on her?

[8] How do the privacy interests of other statutory parties impact on the court’s decision on the PGM’s claim?

[9] There are also secondary issues and considerations which will surface in the course of these Reasons that may well play a role in the court’s decision. A better appreciation of these Reasons requires an understanding of the factual context in which they apply. This means some background is necessary.

Background

[10] The mother has three daughters, the older two, ages 9 and almost 7 years, with G.H. (Father 1), and the youngest, age 3, with M.F.P. (Father 2). The society has been involved with the mother for some time, but most recently because of her relationship with one M.Y., that the society maintains is one of violence, drug use and criminality. The situation deteriorated to the point that the society persuaded the mother to place the three children with their maternal grandparents (MGM’s), the D.R.s, under a “Temporary Kinship Agreement” on Sept 30, 2020. However, the children were a considerable burden on the MGP’s and the two oldest began spending more and more time with their PGM. The mother did not like this development, and there is evidently some animus between her and the PGM. In any event, the mother gave notice that she was revoking the Temporary Kinship Agreement and wanted her children returned to herself.

[11] The society responded with this child protection proceeding and obtained an order on Dec 7, 2020 for temporary care and custody placing the youngest child with Father 2, and the two older children with their PGM (the mother of Father 1). That order was a “without prejudice” order. Father 1 has dropped out of his daughters’ lives and is not participating in this case. In fact, the society has obtained an order dispensing with service on him.

[12] The proceeding has moved at a snail’s pace since then. The society’s temporary care and custody hearing has not been heard or even scheduled, and the ‘without prejudice’ order is still the operative order. The hearing for a finding that the children are in need of protection has not taken place, nor has it been scheduled. The mother brought a motion (at Tab 21) in August 2021 seeking for herself the temporary care and custody of all three children. The PGM brough her motion (at Tab 22), also in August 2021 to be added as a party in the child protection application. The PGM’s motion logically has to be heard first. Depending on its outcome, the PGM may have some involvement in the mother’s motion. and in the application itself.

[13] The society’s application claims have officially remained the same. It is opposing the PGM’s motion claim for party status. Why it is opposed is set out in its arguments outlined below. In reading the society’s evidence, it is abundantly clear that it believes that there is considerable conflict between the mother and the PGM, and that each recounts to the society things that the two older children are alleged to have said or done. Each does not wish the other to have the children in the other’s care and custody. The society’s observations and investigations of the PGM’s allegations relating to the mother have all been found to have no foundation. It has devolved, in many ways, into a custody contest between mother and PGM for the two older children. There is a hint, in reading between the lines, that the society is no longer seeing the mother as the ineffective parent that it claims she was at the start of this proceeding. It seems that the mother “has become engaged with the society, and has begun to follow through with recommendations for services and is accepting of assistance”.

[14] The PGM makes no secret of what she wants. She, in fact, started a custody application under the Children’s Law Reform Act (the CLRA) in September 2020, before the society’s child protection application was commenced, and which is probably now stayed. The PGM does not want the children returned to their mother whom she refers to as a “compulsive liar”, a “narcissist and a master manipulator”. The court has the same problem as the society. It cannot tell what the children are actually recounting, and it is very suspicious of anything that either the mother or the PGM say about the other, particularly as most of this is recounted in the evidence of society workers and is clearly hearsay if emanating from the PGM (a non party) but not necessarily so if emanating from the mother (a party).

[15] This is the framework in which the PGM’s motion is brought and in which the court is asked to make a decision.

Is the PGM a Statutory Party

[16] The first argument made by the PGM is that she is a party respondent in the society’s child protection application by virtue of the CYFSA statute, but not named as a party by the society.

[17] This argument is based on s.79 of the Act:

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.

[18] The PGM argues that she is a party by reason of the fact that she is the “parent” of these children. It is noteworthy that a “parent” for purposes of Part V of the CYFSA is not just the two persons who contributed biologically to the creation of child (i.e. the bioparents). For Part V, which is the part of the CYFSA which deals with child protection, a ‘parent’ has a much wider and more expansive meaning. The meaning is found in s.74(1) and a ‘parent’ under s.74(1) is customarily referred to as a ‘statutory parent’. Section 74 warrants some closer scrutiny.

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”)

[19] As if these statutory parent definitions are not enough, there are more. A ‘parent’ is also an individual described in the Children’s Law Reform Act (the CLRA) in s.7 (2) and in paragraphs 1 to 5 thereof. Fortunately, none of such CLRA definitions could possibly apply to a grandmother of a child, so they are better ignored. This leaves the definitions in s.74(1) above to consider with respect to the PGM.

[20] The PGM relies on clauses 5, 6 and 7 of s. 74(1) above.

[21] Clause 5: An individual who has lawful custody of the child.

The PGM is correct that she has lawful custody of both of her grandchildren. This is admittedly under an order made “without prejudice” on Dec 20, 2020, and is a “temporary” order, but it is sufficient to qualify as an order that grants to her “lawful custody”.

[22] The society suggests that “temporary custody” is not sufficient “custody” to fall within the ambit of “lawful custody”. Custody pursuant to a s.102 CYFSA deemed custody order might suffice as “lawful custody”. The society argues that according a temporary custodian the status of a parent could lead to all kinds of people being involved in child protection cases.

[23] I disagree with this characterization of a statutory parent under clause 5. The facts are that the society requested that the court grant to the PGM the temporary caregiving and custodianship of her grandchildren in its motion (at Tab 5 Vol 1). It was the court that made the order on Dec 7, 2020. From that point on, the PGM had “custody” of the children. She still has. The PGM has all of the attributes of a person having custody, and is entitled to exercise her custodial rights against the society, the biological parents or anyone else. Only a court can divest her of these custodial rights. While the custody of the PGM is explicitly subject to a society supervision order, and also subject to court imposed conditions, neither of these diminishes the fact of her having “custody” rights.

[24] The society also hinted at a temporal argument that affected the PGM’s entitlement to party status as a statutory parent. This actually is more persuasive than the argument that ‘temporary’ custody is not tantamount to ‘lawful’ custody. The temporal argument is that the time for considering if the PGM is a parent is not when her motion is heard, but rather when the society commenced its application. In short, the society’s position seems to be that ‘lawful’ custody has to be determined on what factual events had occurred before its application was commenced.

[25] The society is correct to say that the mother had both care and custody of the two children until she entered the Temporary Kinship Agreement placing her children in the care of her parents on Sept 30, 2020. Regrettably no copy of the agreement was included in the court filings. The mother may have then transferred care and retained custody. If that was the case, she no longer had custody after Dec 3, 2020 when the children were removed from her care, and definitely not after Dec 7, 2020 when the PGM got her “without prejudice” temporary care and custody order.

[26] The end result is that after Dec 7, 2020, the mother did not have custody, her parents (the MGP’s) did not have custody, and the society did not have custody. It was the PGM who had custody. It was clearly lawful as it was granted by a court order. Moreover, it has persisted to today, some ten months later.

[27] While it is correct that the PGM did not have “lawful custody” when the proceeding was commenced, she clearly does now. The society correctly did not name her as a party when it commenced this proceeding as a person falling within clause 5 of s.74(1) CYFSA. The issue is whether she is a “parent” now, as a person with “lawful custody”, and whether she should be added as a party now. My conclusion is that she should. This does not add a limitless number of persons to this proceeding. It adds only one. It is unlikely that limitless persons would have ‘lawful custody’ of any child, and if they did, the statute mandates that they be “parties”.

[28] Clause 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.

[29] This clause has two factual pre-conditions to qualifying as a ‘parent’ to a child under the CYFSA. The latter is two headed. Both are needed. The PGM did not acknowledge parentage and did not provide for the children’s support. I take ‘parentage’ to mean bioparentage. I take “provided for the children’s support” to be more than a grandparent looking after the needs of her grandchildren, even over periods that may have been a month or so long.

[30] The former pre-condition is the more problematic. It grants parentage to a person who has demonstrated a settled intention to treat a child as a child of that person’s family. This wording is almost verbatim the wording found in s.1 of the Family Law Act (the FLA) definition of who is included as a “parent”

“parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;

[31] The case law developed under the Family Law Act has been extensive and seems at times to cover a wide spectrum of “settled intention” persons. For the PGM in the present case, her role in the lives of her two grandchildren does not, in my view, pass the threshold of a “settled intention” parent. She has conducted herself more as a concerned grandparent, opening her home to the children on multiple occasions when she saw that they needed a stable home environment. She never placed them on any health plans she may have had. She never applied for or received the federal tax benefit for them. She always relinquished them back to another caregiver when circumstances warranted. She does not provide any evidence that she exercised the authority that a custodial parent would exercise for either of the two children. For example, she does not say that she was the school emergency contact person for them. She does not say that she applied for or had their birth certificates, health cards, passports or social insurance cards. She does not mention any major decisions that she made for either of them. She was aware of the Temporary Kinship Agreement with the other (MGP) grandparents and basically provided them some respite which eventually increased in frequency and duration. In fact, the only thing that she did that is relevant to clause 6 is that she started a CLRA court proceeding to obtain custody – a sure acknowledgement that (an)other person(s) had custody of the children.

[32] Clause 6 also has a temporal feature, namely that the demonstration of the ‘settled intention’ must take place during the 12 months before intervention under this Part (meaning Part V of the CYFSA). The legislators could have been a bit more precise in stating whether this demonstration was needed for the entirety of the 12 months, or whether only a shorter duration was sufficient so long as it fell within the 12 month period. Luckily, this court does not need to grapple with this thorny issue as it has found that there was no ‘settled intention’ by this PGM.

[33] Clause 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.

[34] This pre-condition is somewhat of a repetition of clause 5 except that it specifically includes that the person who claims to be a statutory parent under this clause must do so by a written agreement or by a court order. More importantly, the agreement or order must require that person to provide for the child, or must have conveyed custody of the child to that person, or must have granted to that person, a right of access to the child. The PGM can only rely on a court order that has given her (care and) custody effective Dec 7, 2021. To this extent, I have already dealt with this in paragraphs [15] to [21] above in connection with clause 5.

[35] In summary, the PGM is a ‘parent’ since Dec 7, 2021 when the court ordered that she have temporary care and custody of her two grandchildren. She is a statutory parent under clauses 5 and 7 of s.74(1) CYFSA. I reject the society’s contention that her parenthood must be determined when the child protection application is commenced. I accept that the society was correct in not naming her as a party when it commenced its application. However, the PGM does qualify as a parent now and she should be named as a party respondent in this proceeding. The mother has filed no evidence on this motion. Her submissions are basically repetitions of those of the society but she does say that it is not in the best interests of the children to grant party status to the PGM who is so adverse to the mother, perhaps even hostile to her. This is an adverse proceeding where participants do get adversarial and oppositional, one with another.

Should the PGM be Added as a Party Under the Family Law Rules

[36] The CYFSA has often been said to provide a complete procedural code for child protection proceedings. This is perhaps a bit of an exaggeration as the child protection proceeding is one to which the Family Law Rules (the FLR) specifically apply [See Rule 1 (2) (a) (ii)]. The FLR has an entire Rule [Rule 33] that deals specifically with child protection case and sets out a number of procedural directives that are not found in the CYFSA statute.

[37] Rule 7 deals with “Parties”. It has been used extensively in the past in the context of child protection proceedings. The customary use has been to add parties to a proceeding in which they are not named as parties by the applicant. Their omission as named party may be for a variety of reasons. Some typical ones are:

➢ the person did not fall within the statutory criterion for being a party

➢ the society may have misinterpreted the evidence relating to entitlement to party status

➢ the society may not have been aware of relevant information as to party status entitlement

➢ other parties may have misinformed the court (i.e. lied) about another’s entitlement to party status

[38] The authority to add a person as a party is in 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.

[39] This is a discretionary authority and one that demands cogent reasons why the person is added or not added. There are other subrules in Rule 7 that bear on the exercise of this discretion.

[40] Rule 7(3)(b) places on a person starting a case the obligation to name as a respondent

(i) every person against whom a claim is made, and

(ii) every other person who should be a party to enable the court to decide all the issues in the case.

[41] Every person against whom a claim is made seems at first blush to be a reasonable criterion to be granted party status. However, it is not always adhered to. For example, a society may, in its application, seek to obtain a restraining order against an individual who is the source of protection concerns, but who does not qualify as a biological or as a statutory parent. It may also, in its application, seek an order of no access to a family member of the child who again is a source of risk of harm to the child, but who is not a biological or statutory parent. Often, a society will be adamant in refusing to name such persons as parties despite the fact that they obviously fall within Rule 7(3)(b)(i), but because they do not fall within definition of who are parties in a [Part V] child protection application as set out in s.79(1) of the CYFSA. It should be noted that s.79(1) is not stated to present an exhaustive list of parties in Part V proceedings. In fact, the court can add a Director as a party on a motion of the Director at any time in a proceeding. [See S.79(2) CYFSA].

[42] The more often relied upon provision, however, is in Rule 7(3)(b)(ii). This requires a person starting a case to name as a party “ ....every other person who should be a party to enable the court to decide all the issues in the case”

[43] The argument usually made by the person starting the Part V case, almost invariably a society, is that this applies only when starting a case. I agree that this is how Rule 7(3) is phrased, but I disagree that after a Part V case is started, this subrule can be ignored and forgotten.

[44] An illustrative example arises when bioparents are clearly incapable of adequately parenting a child. Before the court decides to remove a child from its parental caregivers, on a temporary basis in making an order under s.94(2), or before the court makes a final order under s.101(1) CYFSA, the CYFSA statute requires the court to consider placement with a relative or a member of the child’s extended family or community, even a neighbour in the case of a s.101(1) order. At times there may be maternal relatives or extended family put forward by the mother, and paternal family or extended family members put forward by the father. These persons may not surface until a finding has been made that a child is in need of protection and the issue of placement comes to the forefront of the case.

[45] We are all aware of how long societies often take to obtain temporary care and custody findings or findings that children are in need of protection. That means that placement disputes between maternal and paternal family members often do not arise until later in the case. Does a society add such parties then? Should they be parties to enable the court to decide between them? Often the society may favour one side over another and present its evidence to favour its favorite. Is this fair to the non favoured side? Does this side not get to participate as a party and to present its arguments? More to the point, how does the court realistically consider placement with such person if such person has no voice in the decision?

[46] While this scenario is only an example, there may well be others. Some relatives or extended family members may wish to have custody of a child by way of a deemed custody order. They may not qualify as parents, statutory or biological. In some parts of Ontario, a society will not make a claim for a s.102 deemed custody order for ‘policy reasons’. In such cases, it may encourage such persons to seek party status, or it may itself seek party status for such persons thereby allowing them to make the deemed custody claim, AS PARTIES in the proceeding.

[47] My view is that the ability of the court to decide an issue in the case is not one that is static and identified only at the commencement of the proceeding. It may arise because of developments in the case or in the emergence of evidence that was not present at the start of the case. In either event, if the court is faced with an issue it must decide, it must have the evidence, and in some cases, that means that a person who is not a statutory party must be added to provide that evidence.

[48] In the present proceeding, the PGM has factual information that she wishes to adduce primarily to support her wish to have her two grandchildren reside with her. The society appears to be wavering in its claim for their continued residence with her (the PGM), and seems to be leaning more to their return to the mother. The PGM has provided considerable information to the society about the mother, all of which the society has been unable to verify. Can the PGM provide evidence of her own that will satisfy the court? Not if she is not a party in the proceeding.

[49] From the perspective of the Rules, the PGM is a person whom the court should hear, as her information is best coming from her, and not filtered and funneled through the society.

[50] In the event that I am incorrect that she is a party by virtue of being a statutory parent, then my inclination would be to add her as a party in the proceeding under Rule 7. However, there is an abundance of case law that impacts on a decision of whether to add a person as a party under the Rules.

[51] The leading and often quoted decision is from 2002[^1]. It sets out the following principles for the court to consider:

(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.

[52] A further principle is generally accepted as stated in a 2000 decision[^2] of Marshman J. [at paragraph 4], namely,

(v) whether the additional party has a legal interest in the proceedings, i.e an order can be made in their favour or against them.

[53] Finally, I added in a 2011 decision[^3] that all of these principles need not necessarily be present to justify an order adding a person as a party in a child protection case.

[54] In the case of the PGM my conclusion is that she meets all of the aforementioned principles. The society takes issue with the delay that the addition of the PGM may create in resolving the case. I concede that an extra party almost inevitably creates some further delay. However, for the society to simply say that delay will result is not sufficient. It leads no evidence, other than common sense, that one extra party and that party’s counsel will create delay. Moreover, the principle is that it is undue delay or undue prolonging of the case that militates against the addition of a party. Here, the society has not shown that any delay will be undue.

[55] In addition, the court has to look realistically at the proceeding before it. The fact is that the society has not yet had a temporary care and custody hearing, one that Rule 33 states should have taken place within 35 days of the start of the case. The society has not yet obtained a finding that the children are in need of protection. That finding under s.96 of the statute should have been set by the court for a hearing date after three months had elapsed from the date the proceeding started. The society is as responsible for the delay to date as anyone else. I strongly suspect that the society may amend its application and this will result in further delay, whether the PGM is added as a party or not.

[56] The society’s plan for the two older children is at Tabs 2 and 3, Vol.1 of the continuing record. If it sticks to such Plans of Care, the children will remain with the PGM. If this plan is pursued, the addition of the PGM as a party is not likely to cause any delay.

[57] Finally, the intimation is that the addition is not in the best interests of the children. The society has only an opinion of what is in the best interest of any child. That is often an informed opinion, but not always one that is shared by the court. The court is tasked with oversight of societies. In contested child protection proceedings, the court has the ability to hear not only the evidence of the society but also that of respondent parties. In the present case, one respondent that the court may wish to hear from is the PGM. She has had a lengthy relationship with both of her grandchildren, and according even to the society’s evidence, they seem to want to continue to reside with her, at least most of the time. The best interests requirements include the views and wishes of the children, particularly at their ages 9 and almost 7. This is a principle that promotes the addition of the PGM as a party.

[58] For the reasons stated above, my inclination is to add the PGM as a party under the Rules in the event I am wrong about her statutory entitlement to party status.

Should the Court Grant to the PGM Enhanced Participatory Rights

[59] The CYFSA statute grants to any person, including a foster parent, who has cared for the child continuously during the six months immediately before the hearing, participatory rights. These include:

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.

[60] Participatory rights are set out in paragraphs (a) to (d) above. The phrase “ … shall take no further part in the hearing without leave of the court” implicitly permits the court to grant additional participatory rights to persons who fall within this category. Such additional rights, often called “enhanced” participatory rights can include, for example, the right to file evidence, to cross examine other parties or their witnesses, to bring motions, and to be served with any documents.

[61] These enhanced participatory rights are often used when the court wants to limit the participation to something less than a full party might have, but more than s. 79(3) allows.

[62] If I am incorrect in my previous conclusions that the PGM is a party under the statute, and that she should be added as a party under the Family Law Rules, then I would at least grant her enhanced participatory rights. These would include

➢ the right to file an Answer and to file or call evidence

➢ the right to participate at trial/hearing as if she were a party

➢ the right to cross examine witnesses

➢ the right to bring motions

If the PGM is granted party status, or enhanced participatory rights in the child protection application, should the court impose any restrictions or limitations on her?

[63] I recognize that this proceeding is actually two proceedings. One involves the father of the two older girls (Father 1). The other involves the father of the youngest child (Father 2). I do not believe that Father 1 is a proper party to the application in which the subject child is the biochild of Father 2. For this reason, the PGM is not added as a party, nor given any participatory rights, statutorily described in s.79(3) or any enhanced rights with respect to the proceeding that involves the youngest child. I add that the only reason that Father 1 and Father 2 are named as parties appears to be the society’s concern that having two separate applications will double its work and will depopulate our forests. I will add some further comments below with respect to privacy interests.

[64] Other than this restriction, the PGM would have total party status.

How do the privacy interests of other statutory parties impact on the court’s decision on the PGM’s claim?

[65] It is quite evident that the mother and the PGM do not get along, and are, in fact, rather hostile one with the other. This impacts on the society and its position on the PGM’s motion to be added as a party. It does not want the complications and emotionality of a contest between two competitors to cloud the child protection issues that it, by statute, has to grapple with. It is pretty clear that it has already investigated six concerns raised by the PGM and each investigation necessarily involves the expenditure of time, effort and expense by society personnel. I sympathize with the society’s predicament if it has to deal with two difficult and warring parties in this proceeding. However, this is not the first time that a society has had to deal with parties not only opposing the society, but opposing each other in its application. It will likely not be the last.

[66] The addition of the PGM as a party will entitle the PGM to access to everything that is filed in the continuing record. Moreover, it may entitle her to materials that the society, for example, may choose not to file in the continuing record. I am referring to non-party records either in possession of the society, or to come into the possession of the society. Many of these may well be about the mother. In fact the society refers to its concerns about her “substance misuse, alcohol abuse, domestic violence, poor conditions of her home, and her lack of insight into the impact of all of this on the children. It is a logical inference that the mother would not want the PGM to have access to the material that the society has, or may acquire, to support these concerns.

[67] However, the mother has not filed any evidence on this motion. Moreover, she did not argue that her privacy interests may be compromised or otherwise adversely affected by the PGM being granted party status. More to the point, there is presently no non-party production ordered in this case to date. Finally, the mother has not set out to what particular aspect of her past she feels the PGM should not have access. The court acknowledges that child protection proceedings are confidential in respect to who has access to what information, and where information from a child protection proceeding is disseminated. It is a balance, without a doubt, but in weighing that balance, the ability of the parties to put forward their informed positions tips in favour of the parties having as much information as possible.

[68] Accordingly, I give little to no weight to the privacy interests of the mother as a factor in the decision on this motion for party status

Other Considerations

[69] There are other, not so technical. considerations, that the court factors into its decision.

[70] Firstly, the father (Father1) of the two older children is not participating in this case. service on him has been dispensed with by the court on a motion brought by the society. Consequently, the PGM is without party in the proceeding that can present her plan for the children, unless it is the society (which still officially has this plan) which appears close to amending its application to something different.

[71] Secondly, the circumstances outlined in the evidence confirms that the PGM is, and has been, a more than adequate caregiver for her two grandchildren. The society, in fact, advocated for her to be granted temporary care and custody. The court agreed. The children were spending a lot more time with her even before the start of this case despite the fact that they were in the temporary care of the Maternal grandparents under a Temporary Kinship Agreement[^4]. The evidence of the society, shaky as it is, is that the children want to continue to reside with the PGM. The conclusion is that the PGM has a relationship with the children, and they with her, that is of longer standing than just the length of the present case. In short, this is not a recent relationship that sprang us just because of this proceeding.

[72] Thirdly, even where there is hostility, courts have granted party status to one hostile party where to do so might inflame the other hostile party.[^5]

[73] Fourthly, there is no factual basis for concluding that the proceeding will be “unduly” delayed by the addition of the PGM as a party. The delay is already significant and this does not seem to phase anyone in this case, at least not noticeably so. The society which proffers the undue delay argument does not set out what aspect of the proceeding will be unduly delayed, nor does it set out why and how, except that it will involve another person and her counsel.

[74] Fifthly, the PGM is not surfacing at a status review proceeding after only standing in the wings for a prior child protection proceeding. She is not advancing an alternative plan for the children. It is a primary plan. She is bringing her party status claim early on (relatively speaking) before even a temporary care and custody hearing is held. The fact that she was seeking custody under the CLRA cements her claim for her long term care of her grandchildren which certainly has a permanency feature.

[75] Sixthly, the most important and overarching consideration is said by our appellate courts to be the best interests of the child.[^6] In the present case, the position of the children is being presented through hearsay evidence of the society as recounted by the PGM or by others. In any event, it is not direct from the children and not from a non-partisan source. The court is mandated to consider the views and wishes of the child as one consideration of the best interest test. In the present framework of this case, delay in terms of a best interests factor is much less important than the views and wishes of the children.

Summary and Order

[76] In summary, I grant the PGM party status. She, or her counsel, is to be served by the society with the complete contents of the continuing record. She is entitled to file an Answer within 30 days after service upon her of the society’s application. She is also entitled to participate in the mother’s motion which has temporarily been deferred pending the release of this decision. She is not, however, permitted to participate in the mother’s claim for the return to her on a temporary care and custody basis, of the youngest child, who is not her grandchild. There are no claims in this case known to the court for sibling access. Should such claims surface, these limitations on the PGM’s party status may have to be re-assessed.

Legal Representation for the Two Older Children

[77] I note that the direction for legal representation of children is not necessarily a formal claim to be made by a party in a child protection proceeding (but it may arise as such in some cases) . This is a chore mandated by the CYFSA to the court under s.78(2)

S. 78 (2) Where a child does not have legal representation in a proceeding under this Part, the court,

(a) shall, as soon as practicable after the commencement of the proceeding; and

(b) may, at any later stage in the proceeding, determine whether legal representation is desirable to protect the child’s interests

[78] The CYFSA sets out circumstances where it is statutorily desirable that legal representation be directed.

S.78 (4) Where

(a) the court is of the opinion that there is a difference of views between the child and a parent or a society, and the society proposes that the child be removed from a person’s care or be placed in interim or extended society care under paragraph 2 or 3 of subsection 101 (1);

(b) the child is in the society’s care and,

(i) no parent appears before the court, or

(ii) it is alleged that the child is in need of protection within the meaning of clause 74 (2) (a), (c), (f), (g) or (j); or

(c) the child is not permitted to be present at the hearing,

legal representation is deemed to be desirable to protect the child’s interests, unless the court is satisfied, taking into account the child’s views and wishes, given due weight in accordance with the child’s age and maturity, that the child’s interests are otherwise adequately protected.

[79] With the current claims of the society, the conditions in clause(a) above are met. So also, are those in clause (c) as only children age 12 or older are entitled to be present at a hearing. Accordingly, there is a deemed desirability for legal representation for the two older children. There will be an order that legal representation be provided for them.

[80] I thank the parties and their counsel for their preparations for this motion, in particular, for their facta with case authorities, and for their helpful submissions to the court.

Released: October 18, 2021

Signed: “Justice John Kukurin”

[^1]: Children's Aid Society of London and Middlesex v. S.H. [2002] O.J. No. 4491, [2002] O.T.C. 916, 2002 46218, 2002 CarswellOnt 4048, 118 A.C.W.S. (3d) 672 (G. Campbell Ont SCJ)

[^2]: Children's Aid Society of London and Middlesex v J.P. 2000 20732 (ON SC), [2000] O.J. No. 745, (2000), 95 A.C.W.S. (3d) 316, [2000] O.T.C. 139, 2000 CarswellOnt 718 (Marshman J - Ont. Fam. Ct.)

[^3]: Children's Aid Society of Algoma v. V.C. [2011] O.J. No. 851, 2011 ONCJ 83 (Kukurin J Ont CJ)

[^4]: I do not see any reference in the CYFSA to a “Temporary Kinship Agreement”. There are extensive provisions to a “Temporary Care Agreement” in s. 75 and s.76 CYFSA but I gather that the agreement in the present case was not a s.75 agreement. It would be of interest to the court to have a copy of the actual agreement to see what it provides.

[^5]: See Children’s Aid Society of the Region of Peel v K.G. [2012] O.J. No. 1907, 2012 ONCJ 249 Where (Pawagi J Ont CJ) added the grandmother as a party even though “Both the mother, K.G.(1), and the father, T.L., oppose maternal grandmother's motion to be added as a party on the grounds that the relationship between mother and maternal grandmother is so poor that interactions between them actually cause mother's mental health to deteriorate.” [at paragraph 4]

[^6]: A.M. v. Valoris pour enfants et adultes de Prescott-Russell [2017] O.J. No. 3684, 2017 ONCA 601 (Ont C.A.) at paragraph [2] “While delay and legal interest are relevant, they are not, by themselves, determinative. The overarching consideration is the child's best interests. The motion judge determined that on the facts of this case, the F-A mother's participation as a party was both necessary and in the child's best interests. Further, we do not agree with the Divisional Court's assessment of the delay and legal interest factors.”