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

Date: 2022 03 24 Court File No.: Sudbury C-9-20

BETWEEN:

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

— AND —

A.H. and D.L. Respondents

Before: Justice Leonard Kim

Heard on: March 10, 2022 Ruling on Motion by Foster Parents for Party Status released on: March 24, 2022

Counsel: Robin Saari/Patricia Marcuccio................................. counsel for the Applicant society Lance Talbot.................................................. counsel for the Respondent mother, A.H. Trent Falldien.................................................... counsel for the Respondent father, D.L. Julie Lamothe.......................................... counsel for the foster parents, T.O. and M.L.

KIM, Leonard J.:

[1] The foster parents, T.O. and M.L., have brought a motion to be added as a party to this child protection proceeding. The child, A.L., born […], 2019, is the biological daughter of A.H. and D.L. I have reviewed the affidavit evidence from the foster parents dated October 22, 2021, and March 2, 2022, the affidavit of the respondent mother, A.H. dated February 24 and March 3, 2022, as well as the amended application of the Children’s Aid Society of the Districts of Sudbury and Manitoulin (hereinafter referred to as the “Society”) and supporting affidavit from child protection worker, Kim Saunders dated November 2020.

1: Overview

[2] In the few months following the child’s birth, at the heart of the Society’s concerns, included the presence of domestic violence between the biological parents, their mental health as well as overall concerns for the parents’ ability to care for their young baby.

[3] Due to criminal charges that were laid against the respondent father in November 2019, there was a criminal court order prohibiting contact as between the biological parents. However, this order was not honoured and the biological parents continued to be in contact with one another. The respondent father has a history of assault, domestic violence and breaching criminal court orders. This was a concern to the Society, as from their perspective, this was placing the infant child at risk of ongoing conflict and potential harm.

[4] On January 1, 2020, the child suffered an unexplained injury while the parents were together at their residence. At first, the respondent mother denied that the respondent father was present. This sparked a joint investigation involving the police and the Society’s Violence Intervention Team. On January 2, 2020, the child was assessed at a clinic and the mark was observed by the child protection worker and staff at the Larch Street Daycare. The injury on the child was described as a bruise on the bridge of her nose and a bruise on the inside of her upper lip.

[5] On January 4, 2020, the child was apprehended by the Society in Sudbury placing the child in the care of the current foster parents. The child was almost 4 months old at the time. As the Society continues to pursue permanency and stability for the child, their position remains supportive of the child remaining in the care of the foster mother because the child has become familiar and comfortable with her. Although there was a brief period where the child was returned into the care of the biological mother in May 2020, this did not last long.

[6] There appears to be a difference of opinion describing the nature of the relationship between the foster parents and the respondent mother upon the child’s birth. While the foster parents explain that they offered support for the respondent mother because she needed help in caring for her young child, the respondent mother sees it differently. Her evidence seems to suggest that the increased level of involvement from the foster parents was not welcome and became increasingly inappropriate. Those differences need not be reconciled here for this narrow motion seeking to decide the issue of party status for the foster parents.

[7] However, what is clear in the affidavits from the foster parents is that they consistently assert that they would be in the most optimal position to offer the most direct evidence to this Court in understanding what would be in the best interest of this child. Ms. Lamothe argued that there is no other party in this child protection proceeding who can shed light on the child’s day to day physical, emotional and psychological needs to the degree that the foster parents can. She further argued that no one is able to adequately explain what the direct experiences are of the child because she was apprehended at such a young age. Part of the evidentiary basis for her argument is sourced in the fact that for the most part, the foster parents have had the primary care for this young child since early January 2020, when the child was less than 4 months of age.

[8] In October 2021, the respondent mother was granted unsupervised access by the Society. However, within three days, the foster parents observed a large welt on the child’s face with no definitive cause determined.

[9] Additionally, the evidence in the affidavits filed by the foster parents articulates that the child experiences night terrors and early signs of PTSD or post traumatic stress. They suggest that these signs of psychological distress from the child happen after visiting with the biological parents. They have acted on this concern by seeking advice and guidance from a mental health professional as evidenced in their affidavit of March 2, 2022.

[10] On the ultimate issue in this child protection application, the Society is seeking a Finding that the child is in need of protection and a disposition for Extended Society Care that would likely include maintaining the current placement of the child with the foster parents.

[11] According to the foster parents, at the same time, the mandate of the Society to consider family reunification as part of its legal position is, an unavoidable conflict of interest. They point out that their interests would not be objectively presented to the Court in trying to determine what is in the child’s best interest.

[12] Ms. Lamothe brought to the Court’s attention that there have been challenges in the ability of the Society’s workers to communicate effectively with the foster parents. Those concerns listed at paragraph 39 of their factum appear to be unrebutted by the Society, since they took no position in this motion. At paragraph 40 of their factum, the concerns of the foster parents appear to have escalated to the point where the foster parents lodged a complaint with the Society for numerous misconduct situations. Of the concerns raised, the most aggravating appears to be the allegation that the child went missing twice from her daycare coupled by a lack of communication and action in response to that situation.

[13] The foster parents take the position that they should be afforded the opportunity to present an Answer and Plan of Care as well as a long-term plan for the child.

[14] When asked by this Court why participatory rights as included in s. 79(3) of the Child, Youth and Family Services Act (CYFSA) would not suffice, Ms. Lamothe referred to the lack of opportunity to cross-examine or essentially test the evidence as being a key distinguishing feature with being granted full party status.

[15] The respondent mother disputes the efforts of the foster parents to be added as a party. She explains in her materials that her relationship with the foster mother has deteriorated to the point where they are no longer directly communicating with each other. She attributes this negative relationship to the foster mother’s constant overstepping and unwanted advances with respect to her child, both before and after her birth. Mr. Talbot also highlighted in his submissions the relationship of trust and dependence the mother had in the foster mother, who was her university instructor during the material times. He explained that there exists an element of broken trust, since the respondent mother shared her struggles with the foster mother, in her capacity as a person in a position of trust or authority over her. From the respondent mother’s perspective, she never expected these moments of vulnerability shared with her university instructor to be used against her in child protection litigation.

[16] The respondent mother further asserts that the foster parents have not witnessed her parent the child first-hand and as a result, would not be able to accurately comment on this issue during the proceedings. Thus, the ability of the foster parents to assist this Court in determining how the ultimate issue of child protection and disposition, if any, should be settled, would be non-existent.

[17] Finally, the respondent mother expresses that adequate input could be obtained from the foster parents through the Society. They point out that the two positions are not adverse with each other and that there would be a duplication of voices if this Court were to permit the foster parents to have party status. The respondent mother’s position is amplified with the fact that the Society has already been working closely with the foster parents from a very early stage of these child protection proceedings.

[18] In an alternate position advanced by Mr. Talbot for the respondent mother, he highlighted the option to grant the foster parents participatory rights, as legislated in s. 79(3)(a) – (d) of the CYFSA.

[19] On behalf of the respondent father, Mr. Falldien echoed this submission and argued that the best way to resolve this motion would be to grant the foster parents in what he called “enhanced participatory rights”. The legislative avenue for this route is found in s. 79(3) of the CYFSA.

[20] The applicant Society took no official position in this motion for party status brought by the foster parents. However, Ms. Marcuccio did agree with the respondent father’s lawyer, in that upon application of s. 79(3), the foster parents could be granted leave to file an affidavit to express their views in these proceedings.

[21] When this motion was argued before me on March 10, 2022, the Society was not in a position to confirm if they would call the foster parents to testify at subsequent stages of these proceedings. Understandably, this was a decision to be left with the assigned Society counsel who happened to be out of the office.

[22] Mr. Talbot on behalf of the mother undertook to this Court that in the event the Society does not call the foster parents, he would, pursuant to Rule 23(11) of the Family Law Rules.

[23] In determining whether to add the foster parents as parties to these child protection proceedings, the Court must consider the following 5 factors:

1. Whether the proposed party is a person capable of putting forward a plan that is in the child’s best interest;
2. Whether the proposed party has a legal interest in the proceedings;
3. Whether the addition of the party is necessary to determine the issues;
4. Whether the addition of the party will delay or prolong the proceedings unduly;
5. Whether the addition of the party is in the best interests of the child.

2: Analysis

[24] The paramount purpose of the CYFSA is provided in s. 1(1) and affirms that the purpose of this Act is to promote the best interests, protection and well-being of children.

[25] Section 79(1) of the Act outlines who are parties to proceedings under this Part. It does not include foster parents.

[26] Rule 7(5) of the Family Law Rules permits the Court to order that any person who should be a party to be added as a party. However, the Rules do not set out the criteria that must be met to grant party status. For this, we must turn to the case law.

[27] The case of Highland Shores CAS v. T.S., 2021 ONSC 719, at paragraphs 21-30, provides us with 5 factors that assist the Court in determining whether a foster parent should be added as a party:

1. Whether the proposed party is a person capable of putting forward a plan that is in the child’s best interest.

[28] I find that the foster parents are capable of putting forward a plan that is in the child’s best interest. The child was born on […], 2019, and in early January 2020, the foster parents had been the primary caregivers for her. They have been involved in this young child’s life since the child was less than 4 months old. Today, the child is approximately 2 ½ years old. It is true that there does not appear to be anyone in these proceedings who know this young child of tender years better than the foster parents. Therefore, their ability to present a plan that is in the child’s best interest is easily met.

2. Whether the proposed party has a legal interest in the proceedings;

[29] The foster parents are not seeking adoption as a remedy at this stage of the proceedings. However, that is their long-term objective. They concede that adoption would be premature since there has not been a Finding in this case. There may never be a Finding that the child is in need of protection justifying the Society’s further intervention and a disposition permitting the child to remain in the foster parents’ care long term. However, like the Court of Appeal recognized in A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell 2017 ONCA 601 at paragraph 31, and the Superior Court in Highland Shores (supra) at paragraph 19, the foster parents were ultimately seeking permanent placement of the child and were still found to have a legal interest in the proceedings.

[30] In A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, the Court of Appeal held that the Divisional Court’s conclusion that the foster mother had no legal interest, was too narrow a view even though no final order could be made in favour of the foster mother at that stage of the proceedings. In that case, an opportunity to adopt the child would be foreclosed depending on what the outcome of the proceedings were. This is similar to the case at bar. Accordingly, I find that the foster parents do have a legal interest in these proceedings.

3. Whether the addition of the party is necessary to determine the issues;

[31] Similar to A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, (supra) at paragraph, 28, the OCL are not involved.

[32] Also relevant for this Court’s consideration is that the Society has not confirmed that they would call the foster parents as witnesses. While Mr. Talbot on behalf of the respondent mother has undertaken to do so, the manner in which this evidence would be presented would be largely dependent on the instructions of his client, which could change at any point between now and the moment the subsequent motions or the trial commence.

[33] Without an order granting party status to the foster parents, the ability for this Court to hear directly from these witnesses in viva voce form, would be contingent on too many factors outside the control of this Court and could be limited to hearsay or in documentary form. In consideration of the highly vulnerable young child who is at the center of this proceeding, I find that there is no justifiable reason to not vigorously pursue the best evidence available. Direct evidence from the foster parents, as the primary caregivers for a young child who cannot speak for herself, in the absence of Office of the Children’s Lawyer (OCL) involvement, requires more. It is only by hearing from the foster parents, and their responses to the evidence elicited during litigation held in real time, will this Court have the most comprehensive and current information required to make a sound decision in the child’s best interest.

4. Whether the addition of the party will delay or prolong the proceedings unduly;

[34] There is no evidence that by adding the foster parents as a party, that these proceedings would be unduly delayed. While it is regrettable that the case has progressed this far without a determination of whether a Finding is warranted, a motion date for temporary care of the child and access sought by the respondent father is already set for April 12, 2022. The foster parents are poised to file their Answer and Plan of Care in these proceeding should they be granted party status. Furthermore, the parties already have two affidavits from the foster parents and other materials in this case. The parties are fully alive to the possibility the foster parents may be added as a party. While the time requirements under the Rules would have to be applied flexibly, the prospect of this case proceeding as initially planned is high.

5. Whether the addition of the party is in the best interests of the child.

[35] This case requires others to express the views and experiences of a young 2 ½ half year old girl, who has spent almost her entire life with the two foster parents who are seeking party status. Children at this tender age are highly reliant on the adult caregivers that care for them. They may not be able to express themselves with the verbal clarity of an older child or adult. This is why the OCL is not involved and could not be.

[36] Foster parents are not intended to provide a comparative analysis for the determination of the child’s best interests from the outset. This was made clear in paragraph 5 of the A.M. decision, in citing L.(R) v. Children’s Aid Society of the Niagara Region (2002), 34 R.F.L. (5th) 44 at para. 38, “…prior to the initial hearing foster parents are meant to provide temporary care for children pending their return to their family or transfer to a more permanent placement. They are not intended to provide a comparative analysis for the determination of the child’s best interest from the outset”

[37] The Court of Appeal in L.R. also stated at para. 50, that in certain circumstances, the ultimate determination of a permanent placement might in fact engage a comparison between the child’s family and the foster parents. In those instances, the best interests of the child would be the deciding factor, as opposed to the rights of the family or foster parents.

[38] The child has been for the most part in the care of the foster parents since January 2020. While I am mindful of the concerns that the inclusion of foster parents as a party at this stage may entail, in assessing what is in the child’s best interest, the more specific and relevant information that could be made available, both circumstantially and directly, the better the ability for this Court to properly adjudicate the issues on their merits. Where a foster parent is in the best position to know the detailed particulars that relate to the needs of the child in what would ultimately be in the child’s best interest, this would support granting party status to that parent. This was also a consideration in granting party status to the foster mother in A.M. at paragraphs 9 and 10.

4: Ruling

[39] I find that by adding the foster parents as parties to this proceeding, the Court will have an enhanced ability to weigh the conflicting evidence that will be presented going forward. The alternative, which limits the viewpoints of the foster parents to affidavits in a static form, would run the risk of falling short and exposing an informational gap in a case where a young child has no other means to provide her voice.

[40] Accordingly, the motion for party status brought by the foster parents T.O. and M.L. is granted.

[41] The matter is adjourned to the next motion date that was previously set for April 12, 2022.

Released: March 24, 2022 Signed: Justice Leonard Kim