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: Kina Gbezhgomi Child and Family Services v. N.F., 2021 ONCJ 643 Date: 2021-11-18 Sudbury Court File No.: 671/07-007

Between:

Kina Gbezhgomi Child and Family Services, Applicant,

— and —

N.F. and D.S., Respondents.

Z.Z., Motion Applicant

Before: Justice John Kukurin Heard on: September 14, 2021, 2021 Reasons for Judgment released on: November 18, 2021

Counsel:

• Mr. Spencer Moore for Ms Rachelle Philippe, counsel for the Respondent society
• Mr. Lance Talbot, counsel for the Applicant mother, N.F.
• Mr. D.S., Respondent father (Not present although duly served)
• Mr. James Weppler, counsel for the Motion Applicant, Z.Z. (foster mother)
• Mr. Gerald Brouillette, OCL counsel for the child E.

KUKURIN J.

[1] These are my Reasons on a motion at Tab 9 brought by the foster mother, Z.Z., of the child E.S., who turned age 7 on [...], 2021. The motion seeks an order granting party status in this proceeding to Z.Z., her husband R.R., and their daughter, A.R.

[2] The motion is opposed by the mother of E., N.F., and by the KINA society. OCL counsel for the child supports the motion claim sought. The child’s father is not participating and more will be said on that below.

THE NATURE OF THE PROCEEDING

[3] This is an unusual proceeding in several senses. Firstly, the Application in this proceeding is a Status Review application brought by the mother, N. It was filed on Oct 23, 2020 and is now just over a year old. The application is in Form 8B.1, a status review of a child in extended society care (ESC). The description of the parties in this status review case remains the same as in the original proceeding that resulted in the Extended Society Care order for E. because of Rule 7(6) of the Family Law Rules. It is clear however that the mother is the Applicant, and the society and the father are Respondents, no matter that they are shown differently in the name of the proceeding.

[4] The mother’s claim is for orders

• that the extended society care order for E. with the KINA society be terminated;
• that the child E. be placed with the mother, N., subject to supervision by the society (hereafter referred to as KINA) for six months on terms and conditions specified in an attached Appendix (the Appendix is blank);
• that she have access to E. each weekend Friday after school until Sunday at 7:00 pm; and
• that the mother be granted a sole custody order of E. under s.102 of the Child Youth and Family Services Act (the CYFSA)

[5] The KINA society has filed an Answer, two in fact, one at Tab 2 and one at Tab 6. The first Answer agrees with the claims made by the mother for access and for a six month supervision order. It also agrees to an order for access by the father to be supervised although the mother has not asked for any order of paternal access, and there is no order of paternal access in existence. With respect to maternal access, the KINA society explains that it is proposing reinstating of ‘in person’ access between the mother and E., with three access visits per week and one weekend visit, but no durations or other details of these visits are specified. The second Answer is basically the same except that it does not agree with a s.102 deemed custody order that the mother is seeking.

[6] There is no affidavit of service filed of the mother’s Status Review Application on the father, D.S., nor on anyone else.[^1]

[7] The motion applicant in the motion for party status at Tab 9 is the foster mother, Z.Z. She is the sole motion applicant but seeks party status not only for herself, but for her husband R.R., and their adult daughter, A.R., also foster parents. This motion claim is opposed by the mother and by the society. These three individuals have been E.’s foster parents for 3 ½ years continuously since April 20, 2018 and they still have him in their home.

Preliminary Matters

[8] What is set out above are the salient facts that form the framework in which this motion for party status is brought. However, there are several preliminary matters that are apparent, at least to me as the judge presiding at the hearing of this motion. These impact firstly on the status review application, but for purposes of this hearing, on the motion claim for party status. These are relevant in different ways and to different degrees, so it is best to examine them.

[9] Service and Notice – Firstly, there is the lack of proof of service of the mother’s status review application mentioned above. While I concede that it may be that I have overlooked such proof of service, it may equally be that none was ever filed. I would be happy to be corrected. If there is no proof of service of the application, this is a critical omission that must be corrected.

[10] It is evident that the KINA society is aware of the mother’s status review application as KINA has answered it – not once but twice. The status review application of the mother is made under s.115 of the Child Youth and Family Services Act (CYFSA)

S.115 (4) An application for review of a child’s status under this section may be made on notice to the society by,

(a) the child, if the child is at least 12;

(b) a parent of the child;

(c) the person with whom the child was placed under an order for society supervision described in clause 116 (1) (a);

(d) the person to whom custody of the child was granted, if the child is subject to an order for custody described in clause 116 (1) (b);

(e) a foster parent, if the child has lived continuously with the foster parent for at least two years immediately before the application; or

(f) in the case of a First Nations, Inuk or Métis child, a person described in clause (a), (b), (c), (d) or (e) or a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities. (my emphasis)

[11] In the present case, the mother is a “parent” and can properly bring her application by virtue of being a ‘parent’. The society on which an application is served must give notice to others:

s.115 (6) A society making an application under subsection (2) or receiving notice of an application under subsection (4) shall give notice of the application to,

(a) the child, except as otherwise provided under subsection 79 (4) or (5);

(b) the child’s parent, if the child is younger than 16;

(c) the person with whom the child was placed, if the child is subject to an order for society supervision described in clause 116 (1) (a);

(d) the person to whom custody of the child was granted, if the child is subject to an order for custody described in clause 116 (1) (b);

(e) any foster parent who has cared for the child continuously during the six months immediately before the application; and

(f) in the case of a First Nations, Inuk or Métis child, the persons described in clause (a), (b), (c), (d) or (e) and a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities. (my emphasis)

[12] There is no proof of service by the KINA society of “notice of the application” on the foster parents who have had the child continuously for over 3 ½ years, although KINA’s evidence is that it did serve the foster parents. Nor on the father of E., who is unquestionably a “parent” of the child.

[13] The society, in its Answer at Tab 2, seems to make a claim for supervised access to D.S., the father of E. There is no proof of service of its Answer on the father. While the father, as the parent of the child E. who is under age 16, is listed in s.115(6)(b) as a person to whom the society must give notice of a s.115 application, the father is also clearly affected by the society’s claim and so should be served with at least the society’s Answer. The father is still a parent, albeit of a child in Extended Society Care, and so is technically a party, notwithstanding the statutory omission of any specific need for the society to serve him with its Answer. If the mother is successful in her application, the father may well be interested in advancing a claim for access.

[14] The words “notice of the application” in s.115(6) lie somewhere between ambivalent and vague. It is of some importance to determine what they mean, particularly as in this case, the mother’s resistance to granting party status to the foster parents is based partially on the mother’s privacy interests and her opposition to their being given information about her private life. There is no Form called a “Notice of Application” in the Family Law Forms. It seems somewhat absurd to have a provision for service on foster parents unless whatever is served on them sets out what request is being made of the court. I believe that the society is obligated under s.115(6)(e) to serve these foster parents with a copy of the mother’s status review application. I find support for that conclusion in an earlier provision in the CYFSA that deals with parties:

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. (my emphasis)

[15] Surely, if the foster parents are granted the same notice as the society, it must include the mother’s Status Review Application, and not just a notice that one has been served on the society. Similarly, it makes no sense that the father would be served with only the society’s Answer. This would give him only a part of the story about what is going on.

[16] Leave of the Court – Secondly, there is a subsection of s.115 that places an obstacle, not insurmountable, in the mother’s path. This is found in s.115(5)

S. 115 (5) Despite clause (4) (b), a parent of a child shall not make an application under subsection (4) without leave of the court if the child has, immediately before the application, received continuous care for at least two years from the same foster parent or from the same person under a custody order.

[17] The evidence is that E. has resided with the family of the motion applicant (a foster family) for over 3 ½ years. There is no evidence in the court file that leave of the court was sought by the mother, much less obtained. This seems to be a complete statutory bar to the bringing of the status review application by the mother in this proceeding, except, of course, with the court’s prior leave. This is not something that can be cured by resort to the Family Law Rules. This pre-requisite of the court’s leave also begs the question of whether the foster parents would be granted any right to notice or participation in the motion for such leave. I confess that I don’t know the Answer to that question.

[18] Inadequate Pleadings – Thirdly, the mother’s Status Review Application seeks a termination of the existing ESC order and its replacement by a s.101(1) protection order (six month supervision order) and a s.102 (deemed custody order). Clearly she cannot have both as they are inconsistent with one another. It is difficult to respond when she does not specify which is her primary claim and if the other is an alternative claim. This, however, is correctable.

[19] The order she wants to terminate has other provisions. It provides for access between E. and his siblings (A., Ci. and L.) all four of whom are access holders to each other. What the mother would effect by termination is to take away such access rights. In addition the ESC order provides that E. and his half sister Ch. (K.) are access holders to each other, and that the KINA society will facilitate access between them. How is KINA going to do that if the end result is not a protection order? The termination of the ESC order will also affect Ch.’s rights. None of the children have been served with the mother’s status review application, or if they have, there is no proof of such service. A. and Ci. had an order for legal representation previously and it has been my experience that the same OCL counsel is generally authorized to represent them in status reviews with no court re-appointment. As for Ch., she is now age 16, may not have been a subject child in the prior proceeding, and not have had legal representation.

[20] Nor does the KINA society say one word about its position with respect to the access rights of these children which will be extinguished if the ESC order is terminated. In short, termination will affect more rights than just those of the mother, and she should have some indication in her pleadings of what her plan will be for those others who would be impacted if she is successful. More to the point, should she or the society be obligated to serve them?

[21] First Nation, Inuit and Metis Implications – Fourthly, the child E. was identified pursuant to s.90(2) CYFSA as not being First Nation, Inuit or Metis. The immediate question that comes to mind is what he is doing in the extended society care of the KINA society. KINA is a children’s aid society that was given its jurisdiction by a designation dated March 24, 2015, effective April 1, 2015.[^2]

[22] E. does not meet the qualifications, either geographical or personal, that would place him within the jurisdiction of the KINA society as granted by the Minister of Children and Youth Services in the designation of KINA. How, then does a situation arise that a court order placed E. in the Extended Society Care of a society that may not have had jurisdiction over E.?

[23] The explanation is convoluted and is not entirely explained in the present court file. One may have to look at the previous court file to verify what has actually taken place.

[24] It appears, from what can be gleaned from the present status review proceeding, in particular from the factum of the mother, relied upon by KINA, that

(a) Ch. was apprehended by the Children’s Aid Society of the Districts of Sudbury and Manitoulin. When this took place is unknown to this court.

(b) The matter (presumably the child protection application involving Ch.) was transferred to the KINA agency (I infer that this transfer was made because Ch. is a First Nation child of the Wikwemikong band).

(c) The children A., Ci. and E. were apprehended from the mother by KINA in July 2017. The mother entered an agreement with KINA that she and the four children would live at Genevra House, a women’s shelter.

(d) The mother had difficulties on her own in the shelter, particularly with parenting E. who had special needs. She re-connected with the father, perhaps out of desperation, whereupon the KINA society apprehended the three children in January 2018. It commenced a child protection application. Whether it was one application for three children or four children, or whether it was something else is not known. The child L. was apprehended at birth (dob [...], 2018) and a child protection application was commenced for him as well by KINA.

(e) In February 2020, the mother signed a Statement of Agreed Facts on the basis of which the child protection proceeding(s) was (were) resolved. A finding was made, on her consent, under s.74(2)(b)(i) and (h). The children A., Ci. and L. were placed with the mother under a KINA society supervision order. The child E. was placed in Extended Society Care with access by and to him as described above. By this time, Ch. was no longer subject to any child protection application by KINA. According to the society’s evidence, Ch. is not residing with the mother. She is residing with her biological First Nation father in a customary care home pursuant to a Customary Care Agreement and so is outside the umbrella of child protection that is provided in Ontario under the CYFSA. When this occurred is unknown but is critical to the question of society jurisdiction. When the term of the mother’s supervision order expired, she obtained a s.102 deemed custody order for A., Ci., and L., likely with the consent of KINA.

[25] Many societies enter into Inter-Agency Protocols. KINA has entered one with, inter alia, the Children’s Aid Society of the Districts of Sudbury and Manitoulin (the Sudbury society) These protocols provide for a number of things, but it is difficult to believe that any such protocol can vest in a society like KINA, for example, a jurisdiction which it does not have in its Ministerial designation as a society.

[26] The aforementioned summary indicates that the Sudbury society transferred its child protection application in which Ch. was the subject child to KINA. This was an appropriate action as KINA likely had exclusive jurisdiction over Ch.

[27] Kina did not, and does not, have jurisdiction over the other children of the mother. They are not indigenous, and E. specifically is judicially identified as not First Nation, Inuit or Metis. The appropriate action of KINA, when Ch. was no longer subject to its child protection application, would have been to transfer the proceeding to the Sudbury society.

[28] At the hearing of this party status motion, the KINA society intimated that KINA acquired jurisdiction over the three non-First Nation children (A., Ci., and E.) when the KINA society started its child protection proceeding in which they were the subject children. Its jurisdiction presumably arose because it had jurisdiction over a half sibling (Ch.). and may, in fact, had an ongoing child protection proceeding involving Ch. as the subject child.

[29] The origin of this jurisdiction by association is not something I discern from the designation of the KINA agency. No explanation was given on the authority on how it arose.

[30] What was further argued was that that when Ch. stopped being subject to the CYFSA, presumably because the application was withdrawn or a termination order was made of an existing protection order, KINA retained its jurisdiction over the remaining three non-First Nation children. Again, why that would be so was not explained. It is not something within KINA’s designation. In any event, the child protection application continued with the KINA agency as the applicant. There was no transfer to any other agency.

[31] Final orders were made that included KINA in key roles. Status review applications are an inevitable sequel to many CYFSA orders and, as in this case, can also be a sequel to a ESC order. From the status review perspective, I cannot see how KINA can justify being a party to this status review aside from the fact that a court has given it Extended Society Care of E. I acknowledge that it was the mother that started this status review application, but the mother has the same jurisdictional problem as KINA.

[32] Differential Polices of Children’s Aid Societies – Fifthly, the KINA society is a “native” society created by the province of Ontario as a first measure to get indigenous services to indigenous peoples provided by indigenous societies. These native societies are given jurisdictions that are carved out of jurisdictions that were previously held by non-native societies. However, both native and non-native societies are mandated to apply the CYFSA and all of its provisions.

[33] The native societies seem hold a different view than do the non-native societies with respect to ‘permanency’. This is a big factor in what drives a non-native society in its prosecution of a child protection proceeding. Permanency for children in need of protection has been mentioned as desirable by countless jurists. Native societies do not appear to consider permanency as important as do non-native societies, and often give re-integration of a child with the child’s former caregiver an elevated importance in its decisions. Frankly, I applaud this difference in approach for several reasons, an important one of which is that it is in line with the objective of keeping an indigenous child in its indigenous family and community and connected to the child’s heritage and cultural values.

[34] But I find that such attitude to be perhaps misplaced when it is a native agency that applies that approach in CYFSA proceeding to a non indigenous child whose mother is non indigenous, whose three full siblings are non indigenous, and whose only indigenous connection is a half sister who is living in a customary care home, presumably with an indigenous customary caregiver, and who is no longer involved in any CYFSA proceeding.

[35] In terms of whether KINA should be the society making decisions in this proceeding for the chid E., I question whether this is proper, both from a jurisdictional standpoint, as well as from a litigation standpoint.

[36] In summary, there are, in my view, plenty of things wrong with the status review application as it stands. Some can be corrected; some may not be. I mention these as I heard some submissions on these issues on the motion for party status. I will return to these below.

Party status – The Law

[37] There are two aspects to adding a person as a party that this court must consider in CYFSA cases. Both, unfortunately, are usually considered in the context of a normal child protection proceeding in which it is the society who brings the application. The unusual aspect of the application in this case, where the mother is bringing the application, requires some mental adjustments.

Party Status Entitlement

[38] The first example of the “adding parties” paradigm is where the person sought to be added has a statutory right to party status but is not so named.

[39] In this case, no members of the foster family (I use this abbreviation for convenience) is included as a party under s.79(1) CYFSA[^3]

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.

[40] However, the foster family members are not foreclosed from involvement in the proceeding. They are accorded what have been called “participatory rights” provided that they have cared for the child continuously during the six months immediately before the hearing. In this case, these foster parents have.

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

[41] The foster family wants more than these participatory rights. They want to be formal parties with the same entitlements and responsibilities as any other party. What does party status give that participatory right does not?

[42] Actually, party status gives considerably more than does s.79(3) CYFSA. It give any party the right to file an Answer, to seek production from parties and non parties, to serve Requests to Admit, to participate in conferences and to cross examine at trial to name a few. In the context of this party status motion, the biggest issue raised against party status being granted to the foster parent(s) was that, as parties, they would have the right to full disclosure of the evidence of all parties in the proceeding, This would include all of the evidence that related to the mother and her past history that was included in not only this status review proceeding, but also in the prior chid protection proceeding.

[43] This, the mother argues, is an interference with her privacy interests, particularly as the foster parents are seeking an outcome that is different than the outcome she is seeking, and also different somewhat from the outcome that the KINA society is seeking. In short, I infer that she fears that the foster parents, if made parties, will get information that they will use to attack her case and buttress their own.

[44] This digression is somewhat relevant to the question of whether the foster parent(s) are parties by statute. Clearly they are not under any category of s.79(1) and would have only participatory rights under s. 79(3).

[45] However, the CYFSA statute seems to have gradations in its various sections. For example, it accords to a child under age 12, different rights than it does to a child over age 12. It has a similar cut-off for a child age 16 or older.[^4] Similarly, the CYFSA gives foster parents differential treatment depending on how long they have had a child continuously in their care. If that period is six months, the CYFSA grants to them ‘participatory rights” in s. 79(3) with an intimation that these might be enhanced by the court.[^5]

[46] Where a foster parent has had the child continuously for 2 years prior to a status review application, the court permits that foster parent to bring a status review application

S.115 (4) An application for review of a child’s status under this section may be made on notice to the society by,

(e) a foster parent, if the child has lived continuously with the foster parent for at least two years immediately before the application;

[47] Should a foster parent take advantage of this provision, then that foster parent would be an applicant, and consequently a party, in the status review application with all of the rights of a party granted by statute. It has not escaped my notice that this subsection is the same one used by the mother to bring her status review application. What inference do I draw? It is that when a foster parent has cared for a child continuously for over two years, the CYFSA treats such person on an almost equal footing to all of the other categories of persons that fall under s.115. So, although these foster parents have admittedly not brought their own status review application, they could do that tomorrow if they wished and thereby acquire party status without any need for a court order. I point this out as more indicative of the spirit of the CYFSA. I concede that as the foster parents have not availed themselves of this provision, they are technically not parties in the present status review application.

[48] In summary, I do not find on the fact of this case that the foster parents are parties under the CYFSA statute. They did not actually argue that they were statutory parties but it does not hurt to examine this possibility if to do no more than exclude it. They are, as I have said, entitled to be served with the status review application.

Party Status Granted under the Family Law Rules

[49] The other way to become a party is by way of a court order. There is a significant body of jurisprudence on this point that was cited by all parties. I need not elaborate it as it is found in most decisions on party status, set out much more concisely than I am able to do, so I will cut and paste the principles from an oft quoted authority, CAS of Toronto v. M.T.[^6] a decision of Sherr J. at paragraphs 19 to 23:

19 Subrule 7(5) of the Family Law Rules (the rules) provides that the court may order that any person who should be added as a party shall be added as a party.

20 The court in Children's Aid Society of London and Middlesex v. S.H., S.W. and D.R., 2002 46218 (ON SC), [2002] O.J. No. 4491, (Ont. Fam. Ct.), set out the following principles for the court to consider before adding a party to a child protection proceeding:

21 The court in Children's Aid Society of London and Middlesex v. J.P., 2000 20732 (ON SC), [2000] O.J. No. 745, (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 In Children's Aid Society of Algoma v. V.C., 2011 ONCJ 83, Justice John Kukurin wrote

The case of Children's Aid Society of London and Middlesex v. S.H., S.W. and D.R., supra, does not stand for the proposition that all four of the "criteria" mentioned in that case must favour the motion applicant before the court can add that person as a party under subrule 7(5). This subrule uses the words "may order", which denotes a permissiveness that should be exercised judicially. In other words, judicial discretion.

23 It is not necessary for the court to determine at this stage whether the maternal grandfather's plan would be successful; the question at this stage is whether his plan merits consideration, despite the delay in bringing it. Catholic Children's Aid Society of Toronto v. H.(D.), 2009 ONCJ 2

[50] No one argued convincingly that the foster parents in this status review proceeding did not meet most, if not all of the criteria set out in the case law to warrant being granted party status under the Family Law Rules. There was one submission that did stand out, namely that the foster parents could not be granted a s.102 deemed custody order and thereby did not meet the criterion of having a legal interest.

[51] It is quite true that s.102(1) CYFSA excludes a foster parent as a person to whom a court can grant a s.102 deemed custody order.

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

[52] This section follows s.101 which provides from dispositions possible in child protection applications. Section 102 is an alternative to a s.101 protection order when a custody order will aptly and amply protect a child.

[53] The proceeding before this court is a status review proceeding brought under s.115. The disposition options available to the court in an application under s.115 are set out in s.116 and include a custody order to a foster parent:

S.116 (1) If an application for review of a child’s status is made under section 115, the court may, in the child’s best interests,

(a) order that the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months;

(b) order that custody be granted to one or more persons, including a foster parent, with the consent of the person or persons;

(c) order that the child be placed in extended society care until the order is terminated under this section or expires under section 123; or

(d) terminate or vary any order made under section 101 or this section. (my emphasis)

[54] When the statute specifies the particular context when an order can be made, it overrides a contrary provision elsewhere in the statute that is unspecific as to context. In summary, any order made in this status review application will be made under s.116, not under s.102 CYFSA.

[55] In terms of whether I would add the foster parents as parties in this status review case, on the basis of the Family Law Rules and the jurisprudence, I likely would add at least one. I do not see much benefit to adding three additional parties when one will do. If the court makes an order in their favour, it can do so regardless of whether they are formal parties or not. One party can put the position of the other two before the court just as they have done on this motion.

[56] The opposition to party status is, for the most part, because the mother sees the foster parents as adversaries. She is quite correct in that as child protection proceedings, like most court proceedings, are adversarial in nature. From the court’s perspective, the addition of a party may, as OCL counsel for the child E. indicated, put before the court information that the court may not get from any other source. No one is in the same situation as the foster parents in terms of what they have gone through with E. and that story is certainly of interest to the court.

Conclusion:

[57] As I indicated above, my inclination would be to add only one of the foster parents, preferably the motion applicant for party status, Z.Z. However, I believe that the KINA society does not have jurisdiction over the child E. in this status review proceeding. I believe it should divest itself of the ESC order of which it is the beneficiary by seeking an order that transfers the ESC order to a society with proper jurisdiction. If I am wrong, then I would add Z.Z. as a party respondent in the present proceeding and let the court sort out how this will play out in the future. For the time being, this status review proceeding should be temporarily stayed until the mother obtains leave of the court, nunc pro tunc, if need be to bring this status review application.

Released: November 18, 2021

Signed: “Justice John Kukurin”

[^1]: It appears that the Justice before whom this proceeding was first returnable granted an oral motion of the mother to dispense with service on the father. However, the mother was not obligated to serve the father. She had only to serve the society. The society has the statutory obligation to serve a parent of the child, and the father was such a parent. One questions what effect the order dispensing with service has. It is an order never taken out.

[^2]: It was amended effective April 12, 2017 to remove a First Nation reserve that fell within the jurisdiction of another society, an amendment that does not affect this proceeding.

[^3]: I note, as an aside, that a “society having jurisdiction in the matter” is a statutory party. If it turns out that KINA has no jurisdiction, then it may not be a party, and perhaps another society is a statutory party.

[^4]: See s.79(5) and s.75(2) for children over age 12 and s.77(1) for those over age 16

[^5]: See Children’s Aid Society of Toronto v. R.D.S.de L. [2008] O.J. No. 856, 55 R.F.L. (6th) 132, 2008 CarswellOnt 1206, 165 A.C.W.S. (3d) 99, 2008 8607 (Czutrin Ont SCJ at para 25.

[^6]: CAS of Toronto v. M.T [2012] O.J. No. 6227, 2012 ONCJ 786