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.
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2023 03 27 COURT FILE No.: Sarnia 48/21
BETWEEN:
Sarnia-Lambton Children’s Aid Society Applicant,
— AND —
C.B., D.C., B.M., and D. F. Respondents
Before: Justice M. Vickerd
Heard on: January 31, 2023 Reasons for Judgment released on: March 27, 2023
Counsel: Shaunice Austin-Marshall............................................ counsel for the applicant society Roderick Catford, agent for Paul Rowley counsel for the respondent C.B., present Roderick Catford.................................................. counsel for respondent D.C., present Graeme Luck..................................................... counsel for the respondent D.F., present David R. Nash counsel for the moving parties for the motion, P.K. and T.K., present Joel J.W.G. Szaefer........................... counsel for the Office of the Children’s Lawyer, legal representative for the children J.B. and Z.L.B. No appearance by or on behalf of B.M………………………………………….in default
VICKERD J.:
Overview
[1] Foster parents have advanced a motion seeking to be added as parties in this child protection proceeding. Additionally, the current participating parties request a final order for a finding that the children are in need of protection and disposition of their care based upon a Statement of Agreed Facts, filed.
[2] In consideration of the issues, I have reviewed the following pleadings:
Notice of Motion of the foster parents dated November 22, 2022; Affidavit of Michelle DiLoreto sworn November 22, 2022; Affidavit of Beckie Dunn (child protection worker) sworn December 5, 2022 Child Protection Applications of the SLCAS issued April 22, 2021, Application Amended May 27, 2021, Application Amended August 19, 2021, Application Amended October 20, 2022 Answers of the Respondents dated September 2, 2021, April 29, 2022, May 9, 2022 Statement of Agreed Facts dated January 24, 2023 Various Plans of Care filed
Background
[3] The subject children of this Application are: J.B. born […], 2012, Z.L.B. born […], 2015 and T.B. born […], 2019.
[4] The mother of all three children is the Respondent C.B.
[5] J.B.’s father is the Respondent D.F.
[6] Z.L.B.’s father is the Respondent B.M.
[7] T.B.’s father is the Respondent D.C.
[8] The children were moved from the care of their mother on April 27, 2021, initially under a voluntary arrangement.
[9] The Sarnia-Lambton Children’s Aid Society first began this child protection litigation in April 2021.
[10] Since April 2021, the Society has amended its Child Protection Application three times - May 27, 2021, August 19, 2021 and October 20, 2022.
[11] The children were placed into the care of their maternal grandmother, subject to the Society’s supervision, on April 27, 2021 pursuant to a “without prejudice” order made by Justice A.E. McFadyen.
[12] On May 25, 2021, the children were placed by the Society in a foster home together, in the care of P.K. and T.K. The children were placed into the formal care of the Society pursuant to a further “without prejudice” order of Justice Leszczynski dated May 28, 2021. The children have resided in K’s foster home since that date.
[13] The Society’s current Amended Child Protection Application is the fourth iteration of amended pleadings, last amended in October 2022. In this current Amended Application, the Society seeks:
a. A finding that the children are in need of protection pursuant to sections 74(2) (b)(i) and 74(2)(h)of the Act;
b. An order addressing placement for the children as follows:
a. J.B. be placed with her father D.F. subject to the supervision of the Society for a period of six months, subject to terms and conditions
b. Z.L.B. be placed with K.C. [non-party kin] subject to the supervision of the Society for a period of six months subject to terms and conditions.
c. T.B. to be placed with P.C. [non-party kin] subject to the supervision of the Society for a period of six months subject to terms and conditions.
d. An order for access between the children and their mother;
e. An order or access between Z.L.B. and her father;
f. An order for access between T.B. and his father;
g. An order for access between the siblings.
[14] Although no responding party has filed an Answer to the current Amended Application, past Answers have been filed by the Respondents D.F.(September 2, 2021), C.B. (April 29, 2022), and D.C. (May 9, 2022).
[15] To date, despite the length of time that this child protection litigation has been outstanding, no findings have been made as required by section 90(2) of the Child, Youth and Family Services Act, 2017 (the “C.Y.F.S.A.” or the “Act”) and a finding has not been made that the children are in need of protection.
[16] Save for child’s counsel, the current participating parties to this Application have executed a Statement of Agreed Facts dated January 24, 2023. That document has been filed with the Court. The parties request:
a. Findings to be made pursuant to section 90(2) regarding the identifying information for the children;
b. A finding that the children are in need of protection pursuant to sections 74(2) (b)(i) and 74(2)(h) of the Act;
c. Disposition of care of the children on the terms contained in the current Amended Application.
[17] The children’s current placement is in the care of the Society by “without prejudice” order made April 27, 2021, varied on May 28, 2021, August 11, 2021 and August 31, 2021. The noted variation orders address access between the children, their mother and their respective fathers.
Issues
[18] The following are the issues to be determined for the motion:
i. Should the foster parents of the three subject children be added as parties to this child protection proceeding?; and
ii. If the foster parents are not added as a parties, should a final order issue on the terms contained in the Statement of Agreed Facts?
Positions
[19] The foster parents P.K. and T.K. seek to be added as parties in this child protection application as they are concerned that the agreement reached by the Society and the parents is not in the best interests of the children. The foster parents raise concerns about risk to the children of the proposed placements, the impact on the children if the current plan is executed, and that they wish to pursue a plan to care for the children permanently. The foster parents assert that they are in the best position to provide the court with evidence relating to the best interests of the children given the length of time for which they have cared for the children. The foster parents also assert that they can advocate for the youngest child, T.B., as he is without counsel
[20] Counsel for the children J.B. and Z.L.B. takes no position on the request of the foster parents to be added as parties.
[21] All other responding parties oppose the request of the foster parents on the basis of the following: the participating parties have achieved a final resolution and seek to have it adopted as an order; the legislative timelines must be considered as the children have been in care for twenty-two months; the foster parents cannot be placed in a position to “compete” with the parents; and, it is not in the best interests of the children for this proceeding to be delayed any further.
Analysis
Process
[22] As found by J.A. Benotto in the recent Ontario Court of Appeal decision of Children’s Aid Society of London and Middlesex v. T.E. [2023] O.J. No. 1107, 2023 ONCA 149, a child protection proceeding cannot be resolved without first determining who the parties are. She found that in the case of first instance, the motion judge erred in that had the applicant’s party status been recognized, the motion judge could not have concluded that the proceeding had been resolved on consent.
[23] Therefore, the process to be followed regarding the resolution of a child protection proceeding in the face of a motion for party status, is to address the motion for party status before moving to resolution.
Party Status
[24] Party status in child protection proceedings can be addressed in two ways:
a. Pursuant to Rule 7(5) of the Family Law Rules; or
b. By way of provincial or federal statutes which define party status.
[25] If an analysis of a request for party status is undertaken under the applicable statutes, the authority of a court to add a party is not discretionary -- if a person is a “parent” as defined in the statute, the court must add them as a party.
[26] In contrast, an analysis engaged under the Family Law Rules, allows for the exercise of judicial discretion when determining whether a person should be added as a party in a child protection proceeding (Children’s Aid Society of London and Middlesex v. T.E., above).
Statutory Parties
[27] In this case, federal statutes are not engaged as the children are not identified as having a connection to a First Nation, Inuit or Metis community. The provincial legislation which applies in this matter is the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, (the “C.Y.F.S.A.” or the “Act”) which sets out the criteria for party status in child protection proceedings. Section 79(1) provides:
79 (1) The following are parties to a proceeding under this Part:
The applicant.
The society having jurisdiction in the matter.
The child’s parent.
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.
[28] In section 74(1) of the C.Y.F.S.A., the definition of “parent” is found, being:
“parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent :
A parent of the child under section 6, 8, 9, 10, 11 or 13 of the Children’s Law Reform Act.
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.
An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.
In the case of an adopted child, a parent of the child as provided for under section 217 or 218.
An individual who has lawful custody of the child.
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.
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.
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”)
[emphasis added]
[29] The definition of “foster parent” is also defined in the C.Y.F.S.A., found in section 2(1) and is a person, who is not the child’s parent or a person with whom the child has been placed for adoption under Part VII of the Act, who provides residential care to a child and receives compensation for caring for the child (Windsor-Essex Children’s Aid Society v D.L.H. 2015 ONCJ 310).
[30] It is uncontroverted for the current motion that the care provided by P.K. and T.K. to the children has been a service provided as foster parents.
[31] Notably, the legislation is clear that foster parents are excluded from the definition of “parent.” Therefore, P.K. and T.K. do not qualify as parties under Part V of the C.Y.F.S.A.
[32] Therefore, I have no discretion to add P.K. and T.K. as parties to this child protection proceeding pursuant to statute.
Discretionary Parties
[33] The application of Family Law Rule 7 in child protection proceedings is confirmed in the cases of: Children’s Aid Society of Algoma v. T.M., 2021 ONCJ 640 and Durham Children's Aid Society v JS, [2022] OJ No 1939 , 2022 ONSC 2535, Children’s Aid Society of London and Middlesex v. T.E, (above) and AM v Valoris pour enfants et adultes de Prescott-Russell, [2017] OJ No 3684 , 2017 ONCA 601 , 139 OR (3d) 211 , 2017 CarswellOnt 10732 , 281 ACWS (3d) 105 , 97 RFL (7th) 66.
[34] Family Law Rule 7 (1) (O. Reg. 114/99), identifies parties to a family court proceeding in Ontario. It provides that a party is: “A person who makes a claim in a case or against whom a claim is made in a case is a party to the case.”
[35] Rule 7 (3) provides:
A person starting a case shall name,
(a) as an applicant, every person who makes a claim;
(b) 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.
[36] Rule 7(4) further distinguishes party status in cases involving children as:
In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child, Youth and Family Services Act, 2017, shall be named as a party, unless the court orders otherwise:
A case about decision-making responsibility, parenting time or contact with respect to a child.
A child protection case.
A secure treatment case (Part VII of the Child, Youth and Family Services Act, 2017). O. Reg. 114/99, r. 7 (4) ; O. Reg. 298/18, s. 7 (1, 2); O. Reg. 535/18, s. 1; O. Reg. 42/21, s. 3 (2).
[emphasis added]
[37] Rule 7(5) allows that the court “may order that any person who should be a party shall be added as a party and may give directions for service on that person” (O. Reg 114/99).
[38] Rule 7(5) provides no direction as to how a Court should exercise its discretion. The former rule and case law to date suggests that a person ought to be made a party if that person’s presence is “necessary to determine the matters in issue.” A person should not be added as a party in a child protection matter unless that person has a legal interest in the proceedings – i.e. an order can be made in their favour or against them.
[39] This court has discretion to add a foster parent as a party in a child protection proceeding. Justice Blishen confirms in the recent decision of Children’s Aid Society of Ottawa v. S.B. [2023] O.J. No. 649, 2023 ONSC 880 that “the addition of party to a proceeding is a contextual condition and must be decided on the specific facts of each case.” He also confirms that the court retains discretion under Family Law Rule 7 to determine who shall be named as a party in child protection litigation. This point was also confirmed in the Ontario Court of Appeal in AM v Valoris pour enfants et adultes de Prescott-Russell, above, with the court making the following comments at paragraph 20:
In our view, both r. 7(4) and s. 39(3) of the CFSA preserve the court's discretion to add a foster parent as a party to a child protection proceeding. We agree that the power to add such a person as a party should not be exercised lightly. However, the Divisional Court circumscribed the exercise of that discretion too narrowly. 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.
[40] There are principles which have developed in case law for a court to consider when faced with a request by foster parents to be added as a party. The leading and oft quoted case of Children’s Aid Society of London and Middlesex v H.(S.) [2002] O.J. No. 4491 , [2002] O.T.C. 916, adopted by the Ontario Court of appeal in above, sets out the following principles for consideration:
a. Whether the addition of the party is in the best interests of the child;
b. Whether the addition of the party will delay or prolong the proceedings unduly;
c. Whether the addition of the party is necessary to determine the issues; and
d. Whether the additional party is capable of putting forward a plan that is in the best interests of the child.
[41] Justice Marshman in Children's Aid Society of London and Middlesex v JP , [2000] OJ No 745 , [2000] OTC 139 , 2000 CarswellOnt 718 , 95 ACWS (3d) 316 (adopted in AM v Valoris pour enfants et adultes de Prescott-Russell, above; Catholic Children’s Society of Hamilton v. J.G. [2015] O.J. No. 1106, 2015 ONSC 1540) added a fifth consideration, specifically:
e. Whether the additional party has a legal interest in the proceedings, i.e. an order can be made in their favour or against them.
There is also reference in the case law that courts should consider the "the stage of proceedings." This does not mean that foster parents are to be added as parties automatically once there has been a finding in need of protection or an order for Extended Care. They do, however, suggest that the role of the foster parent changes and their rights to expanded participation or party status may not be reserved for only the rarest of cases once those determinations have been made. A less restrictive approach should be applied to situations where the foster parent is seeking expanded participation or party status to address the issue of placement, or access once there has been a finding in need of protection or an order for Extended Care. (Children's Aid Society of the Regional Municipality of Waterloo v CT , [2018] OJ No 5688 , 2018 ONCJ 764)
[42] The role of foster parents has been addressed in much case law. Specifically, the Ontario Court of Appeal had this to say about foster parents:
Finally, 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 basis for the determination of the child's best interests from the outset. A best interests comparison between the foster home and the original family at this stage would run contrary to the entire scheme of state intervention in cases where there is reason to believe that a child is in need of protection. As Nasmith J. aptly put it in Children's Aid Society of Metropolitan Toronto v. S.(D.), [1991] O.J. No. 1384 (Prov. Div. Ct.):
There is no logic in the notion that there can be a best interests' comparison of two placements in the sense of determining which of two placements is better' and at the same time accommodating the legal priorities given to the family at the initial stages. ... Once the family placement has been deemed inadequate, then, and only then, do temporary foster placements open up for comparison.
If comparisons between foster parents and original families were legitimate from the outset, it would be tantamount to declaring open season on each and every child who was moved, however temporarily, into a foster home. When could it not be said that there was an attachment between a foster parent and a child and that moving the child back to the family would break the attachment. When could it not be said that the foster home had advantages over the original home. It would be ironic if foster homes were being chosen where the foster parents were so casual that there was no attachment or where the resources were no better than the family that was being assisted.
[43] Justice Marshman in Children's Aid Society of London and Middlesex v. J.P., above, at paragraph 6 states:
It is safe to assume that the mother is correct and the foster parents' real interest in this proceeding is as persons who wish to have the child placed with them on a permanent basis, presumably with a view to adoption. In my opinion, foster parents in that position have no entitlement to become parties to the proceedings. No order can be made in their favour or against them at this stage of the proceeding. J. is not a Crown ward. At this stage the foster parents are merely agents of the Society, which continues to have the sole discretion as to where the child is placed. Foster parents have limited rights under s. 61 of the Child and Family Service Act in circumstances where the child is a Crown ward and has lived with the foster parent continuously for two years. In my opinion it would be dangerous to give foster parents party status in circumstances where a child is not yet a Crown ward.
[44] Justice Nasmith in Children's Aid Society of Metropolitan Toronto v. D.S. and F.S. (1991) at paragraph 10 states:
It is anathema to the role of the foster parents at this preliminary stage of protection intervention to be setting them up as permanent caretakers and to have them staking their own custodial claims on the child. They should be preparing the child for a return to the family. Until it has been determined that there are grounds for removing the child from the family, and that there is no one in the family who is acceptable as a substitute caretaker, the foster parents cannot be putting forward their own resources as being 'better' than the family's or calling for a comparative analysis of plans as between themselves and the family. Before removal from the family has been justified, foster parents cannot have status to compete for the child and to argue 'attachment' or 'better resources'
There is a tacit agreement between the protection agency and foster parents that no claims for custody be made by them until the way has been legally cleared for them. There is a delicate alliance involved in this agreement that would be fractured if foster parents could claim custody for themselves before the preliminary issues had been determined. Sabotage and suspicion would be rampant. The clash between the foster parents and the agency that has emerged from this case would be commonplace.
Moreover, if a best interests, comparison between the foster home and the original family were introduced from the beginning of the protection proceedings, there would be no substance to the principles of family integrity, rehabilitation or to priorities for family placements as set out in section 53. Moreover, the trust in temporary foster placements would be in big trouble. There would be a conflict of interest for foster parents from the outset. 'Best interests' comparisons between foster parents and families do not operate from the beginning. At this initial stage, the family priorities supersede the best interests comparison and these legislated priorities do not melt into a 'best interests' mixture.
[45] Comments made by Justice Czutrin in Catholic Children's Aid Society of Toronto v R.D.S.de L were also specifically endorsed by the Ontario Court of Appeal in A.M. v. Valoris pour enfants et adultes de Prescott-Russell, above as follows:
For very good and appropriate reasons, foster parents' rights are limited prior to an order making the child a Crown ward. At the same time, even if the foster mother were not added as a party, s. 39(3) of the CFSA leaves open (and in fact contemplates) that the court may grant foster parents rights to participate more fully. There is certainly no absolute prohibition against doing so. The motion's judge overemphasized the option of placing the child with his grandparents in the context considering the foster parent's rights of participation at this stage. The motion's judge should have also considered the impact on the child of the time that has passed in this case without resolution and the people who could best bring to light his best interests. The Act should be read and balanced as a whole.
I find that the Court must, on a case-by-case and contextual basis, consider whether to grant leave to allow foster parents greater rights of participation, up to and including party status. These considerations might include:
The age of the child and the time line considerations of the CFSA;
Whether there has been a finding of a need of protection at the time the request for participation is made;
Whether the foster parents will be called to testify and whether their evidence will be challenged;
Whether the persons or parents who had charge of the child at the time of commencement of the proceedings are presenting a plan;
The time of continuing placement of the child;
Whether there has been any contact with the proposed caregivers;
Whether the application has been amended; and
Such other considerations that suggest the foster parent's involvement would clarify the best interests of the child.
Other Participatory Rights
[46] If not making an order for party status, the court also has discretion to allow foster parents enhanced participation pursuant to section 79(3) of the Act. This section provides:
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.
[47] The paramount purpose of the child protection legislation is to promote the best interests, protection and well-being of children. In determining the appropriate exercise of jurisdiction under the Family Law Rules to add foster parents as parties, I am mindful that when determining appropriate disposition for children, the court must have regard to the best interests of the subject children. To do so, the court must have all relevant evidence. Foster parents, having maintained care of the subject children for twenty-two months, are well positioned to address evidence concerning their best interests.
[48] These proceedings, and the resolution proposed by the parties in the Statement of Agreed Facts, constitute life changing events for these children. The court should have all relevant evidence to make a decision appropriate to the best interests of children.
[49] Justice Czutrin, dealing with an appeal in Catholic Children's Aid Society of Toronto v R.D.S.de L, allowed a foster parent to have party status to address the best interests of the children, and made the following comments:
Once there is a finding of a need for protection, the Court's must make an order consistent with the child's best interests in accordance with s. 37(3) of the CFSA. It must collect and consider all available, relevant evidence to make this determination.
In submissions, Society counsel conceded that the foster mother was the person who best knows this child. The child has never lived in a home other than hers. I do not see how having the foster mother lead evidence and cross examine other witnesses would derail the hearing in this case. At this stage, the question before the Ontario Court of Justice is what is in the best interests of the child. It is a child-centred consideration.
[50] The Affidavit filed in support of the foster parents’ motion was provided by the legal assistant to their counsel. It is not persuasive evidence as it is not direct evidence from the foster parents. Regardless, the evidence of the legal assistant is summarized as follows:
▪ The foster parents are prepared to “foster to adopt.”
▪ The legal assistant deposes that “we believe that their evidence and input in this case will assist the court in determining what is best for the children.”
▪ The legal assistant also deposes that the foster parents’ counsel, Mr. D. Nash, is a licensed adoption lawyer and that the motion is advanced for the purpose of “obtain [ing] factual background from the parties and make representations on behalf of [P.K. and T.K.] .”
▪ The legal assistant also deposes that the foster parents received information that the Children’s Aid Society was considering removing the children from the care of the P.K. and T.K. prior to the year’s end [2022].
[51] Aside from the deficits in the evidence of the moving parties, I have serious concerns about the proposed plan for care of the children as advanced by the formal participating parties in the Statement of Agreed Facts which include:
a. Counsel for the children confirms he has not executed the Statement of Agreed Facts as the resolution regarding care of the children is contrary to the views and preferences of the instructing children J.B. and Z.L.B.
b. The Society and the parents seek an order which would result in having the children placed into three different kin homes. To date, the children have resided together for the entirety of their lives;
c. The different family homes, proposed for placement of the children, are in three different communities. Notionally, the three placements will require that the children change schools, family supports, community activities, etc.
d. The uncontested evidence remains that the foster parents have maintained care of the three children since May 25, 2021. This is a significant period for young children.
e. On July 19, 2022, Justice McFadyen entertained a motion advanced by the Society seeking an order to vary placement of the children J.B. And Z.L.B. Justice McFadyen endorsed that:
Issue is placement of the children. This should be heard at trial not further interim motion for placement.
The matter should proceeding to trial – no further interim motions following the Settlement Conference.
f. D.F. began exercising access visits with his child J.B. on December 2, 2021. Visits have been expanded to include overnights. Initially, the Society received information from the Respondent mother that D.F. was deceased. I have no evidence about D.F.’s willingness or abilities to provide long-term care for his child. I have no details about his circumstances.
g. In November 2021, paternity testing confirmed that B.M. is the father of Z.L.B. since confirming paternity, a plan has been advanced by the paternal family for a paternal great aunt and uncle to care for Z.L.B. Their kinship assessment has been approved and Z.L.B. has been having overnight visits with these kin family members. I do not have any evidence of these kin care providers’ willingness or abilities to provide long-term care for Z.L.B. I have no details about their circumstances.
h. T.B.’s paternal grandmother has advanced a plan to care for him. Her kinship assessment was not approved. But, the parties agree that a supervision order would assist in mitigating the existing concerns of risk of exposure to adult conflict. The grandmother has been exercising access with the child since December 2021. I do not have any evidence of this grandmother’s willingness or abilities to provide long-term care for T.B. I have no details about her circumstances.
i. The three plans advanced by parties for care of the children are uncertain and may not be stable long-term placements. The parties are requesting orders of six months’ duration, with Society supervision.
j. I do not have any detailed evidence pertaining to the best interests of the children, addressing the factors for consideration set forth in section 74(3) of the Act. The Society and the parties wish me to infer that because the proposal is that the children be placed with family members, this plan is in their best interests. This plan fails to consider the impact on the children of a separation from their siblings.
k. The plan for the care of the children does not contain any provision regarding contact between the children and their foster caregivers for the last two years.
[52] The concerns noted above warrant further scrutiny. The foster parents are in a good position to offer the court evidence and submissions on these points.
[53] In consideration of the foster parents’ motion, I note the following:
i. The children were taken into the care of the Society on May 25, 2021. At that time, they were ages 8, 5 and 1 year. In relation to the children Z.L.B. and T.B. the legislative timelines fixed in section 122 of the Act have been exceeded. For the child J.B. the legislative timelines will be exceeded in May 2023.
ii. The findings regarding identity required under section 90(2) and a finding that the children are in need of protection have not been made.
iii. The participating parties wish to resolve this proceeding without the requirement of oral evidence on the basis of agreed facts.
iv. The children were removed from the care of the Respondent mother. She is not presenting a plan for a return of the children to her care.
v. At the current stage of proceedings, the foster parents have no standing under the child protection legislation to make a claim for permanent care of the children.
vi. At least two caregivers proposed in plans for the children are family members who appear to have been relatively recently introduced to the children, occurring within the passage of this litigation.
vii. The Society’s plan and child protection application has been amended three times.
[54] Notably, the foster parents cannot advance a plan to care for the children permanently as they have no standing to do so.
[55] The intimation by the responding parties to the motion is that the addition of the foster parents as parties is not in the best interests of the children. The Society only has an opinion of what is in the best interests of any child. That opinion may be an informed one but is 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 that of the respondents and any other witness or evidence that the court deems appropriate (section 92 of the Act). In this case, it is appropriate that the court hear the evidence of the foster parents who have maintained daily care of these children in their home for the past twenty-two months.
[56] I am mindful of the fact that the addition of foster parents as parties may delay these proceedings. These three young children deserve to have resolution and permanence in their lives in a timely manner. This fact must be balanced with the concerns about the current plan for their care advanced by the participating parties. But, I am also cognizant that the current plan advanced only has a duration of six months, subject to a review. I am satisfied that the court should hear from the foster parents before making a final order regarding disposition in the children’s best interests. This can be accomplished through enhanced participation.
[57] Based on the foregoing, I find that it is not appropriate to add the foster parents as parties in this child protection proceeding. No order can be made against them or in their favour. The foster parents have participatory rights under section 79(3) and I find that it is appropriate to provide more expansive participatory rights to them to allow their evidence to be considered in the decision about an appropriate disposition regarding care of the children.
Other Issues
[58] The issues of findings required under section 90(2) and the finding that the children are in need of protection can be addressed with the formal parties’ consent confirmed in the Statement of Agreed Facts.
[59] Unfortunately, this document is not sufficiently detailed in evidence for this court to address these issues at this time. Particularly, the following evidence is missing:
a. Details about inquiries into the children ‘s potential connection to a First Nation, Inuit, or Metis community; and
b. I do not have confirmation of consent for the third-party kin care providers to the terms of the order sought.
Order
[60] Based upon the foregoing, the following order is made:
The request of the foster parents to be added as parties in this Child Protection Application is dismissed.
In addition to the participatory rights of the foster parents T.K. and P.K. entrenched in section 79(3) of the Act, they shall be entitled to participate in the hearing concerning disposition of care for the children and they shall have the following expanded participatory rights:
a. the foster parents are entitled to pre-hearing disclosure, including any evidence filed by Affidavit;
b. the foster parents are entitled to file their own evidence by Affidavit and to cross examine witnesses;
c. the foster parents shall receive disclosure of the Statement of Agreed Facts, any amended Statement of Agreed Facts, and any supplemental affidavit(s) filed in support of the findings relating to section 90(2) and finding of in need of protection;
d. the foster parents shall have the ability to participate with the assistance of counsel at a hearing regarding disposition of care of the children.
The section 90(2) findings and the finding that the children are in need of protection may be addressed on consent of the formal parties with supplemental evidence to be adduced by Affidavit or otherwise.
The issue of disposition of care of the children shall be addressed at a focused hearing, date to be set. An informal TMC shall be held to address the process and evidence for that hearing.
The setting of next court dates shall be addressed in an expedited manner given that the legislative timelines have already been exceeded.
This is not an appropriate case for costs.
Released: March 27, 2023 Signed: Justice M. Vickerd