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: 2023 08 18 Court File No.: Toronto CFO-23-00000573-0000- B1

BETWEEN:

CHILDREN’S AID SOCIETY OF TORONTO Applicant

— AND —

R.E. and F.K. Respondents

Endorsement

HEARD: August 2, 2023

Counsel: O’Byrne, J. .............................................................................. counsel for the applicant society R.E. ....................................................................................................................... self represented F.K. ............................................................................................................................... not present E.E. ........................................................................................... self represented (Kin Caregiver)

[1] The Society’s motion to add the maternal aunt, E.E., as a party was heard on August 2, 2023. I dismissed the motion with reasons to follow. These are my reasons.

Background

[2] The child, an infant, was placed in the care of the maternal aunt on temporary without prejudice basis at the first appearance on February 2, 2023. The Protection Application seeks a supervision order with the maternal aunt. The parents were not properly served until March 22, 2023, almost two months later.

[3] On May 30, 2023, the parents were not present and had not filed Answers and Plans of Care. The Society sought to schedule an uncontested hearing. Society counsel advised that the maternal aunt was prepared to sign a Statement of Agreed Facts. I asked a few questions and discovered the following:

• Based on Children’s Aid Society of London and Middlesex v. T.E., 2023 ONCA 149 (“T.E.”), the Society took the position the maternal aunt was a party;
• the Society did not take any steps to have her added as a party;
• the maternal aunt was served;
• there was no affidavit of service in the file;
• there was no notice to the other parties or to the Court;
• the style of cause remained the same; and
• Society counsel did not know whether the maternal aunt had received independent legal advice (“ILA”).

[4] Based on the foregoing, I directed that the Society bring a motion to add the maternal aunt as a party.

[5] On the return of the motion, the mother was present. The Society had neglected to serve her despite having been given a relatively long adjournment. Rather than adjourn further, I arranged for mother to speak with duty counsel and permitted viva voce evidence. The Society was given an opportunity to cross examine but declined. The maternal aunt was also given an opportunity to give viva voce evidence but declined.

Positions of the Parties

[6] The Society argues that maternal aunt should be added as party because the child has been in her care pursuant to a temporary without prejudice order. The Court of Appeal decision in T.E. makes it mandatory and this Court has no discretion. Although the order is without prejudice, sufficient time has passed, such that it should be view as a with prejudice order. In alternative, the Society relies on Rule 7 of the Family Law Rules. Society counsel submits that the maternal aunt had ILA and consents to being added as a party.

[7] The mother’s position is that the maternal aunt should not be added as a party. In her emotional testimony, she explained that adding her sister as party would pit her against her family. Forcing them to fight each other in court will tear her family apart. The mother has an older child that was raised in what she described as a community by herself, her parents, and her siblings, as is common in their culture. She testified that he benefitted greatly from being cared for and loved by all of them. If her sister is added as a party, she worries that her daughter will not have the same benefit. She is grateful that her sister is caring for her daughter, and she is doing her best to address the challenges she faces, including finding housing, while fighting “the government”.

[8] After hearing from the mother, the maternal aunt tearfully withdrew her consent. She indicated that she did not have legal advice and that the worker told her that “the government” changed the rules such that she had to be made a party to continue caring for the child. She said that the last thing she wants is to add to the “distress” her sister is experiencing. She simply wants to care for her niece.

Discussion and Conclusion

[9] The way the Society applies T.E. can have constitutional implications. As the mother articulated in this case, parents can be pitted against both the state and their families. The imbalance of power created by state intrusion in the life of the nuclear family is amplified by the potential emotional/psychological implications of adding family members as parties to the child protection proceeding.

[10] It is imperative that the process followed when adding parties is consistent with Charter values by ensuring procedural fairness to the other parties and to the proposed parties. Moreover, the process must not derogate from the Court’s ability to manage its own process and effectively case manage child protection proceedings.

[11] When the Society seeks to add a party, the process should include:

• notice to the Court;
• notice to the parents with a meaningful opportunity to respond;
• no service of documents until the party is added;
• ILA (including duty counsel) to the proposed party to ensure that he/she understands:
  • the responsibilities associated with being a party such as filing materials and participating in motions and trial, if necessary;
  • costs associated with and the process for retaining counsel, including applying for legal aid and finding a lawyer; and
  • the possible implications of being added as party such as the relief sought being changed (interim society care v. in the care of the party) or the Society no longer providing assistance to caregivers.
• ensuring that the relief sought in the Protection Application properly reflects the order sought if the party is added.

[12] I do not accept the Society’s submission that the temporary without prejudice should be deemed a with prejudice order because sufficient time had passed for the following reasons:

• the parents were served almost two months after the temporary without prejudice order was made;
• by May 30, 2023, only two months after the parents were served, the Society had taken the position that the maternal aunt was a party (without notice to the parents or Court) and served her; and
• the Society did not provide any authority to support the position.

[13] Given that the maternal aunt no longer consents to being added as a party, she did not have ILA, and the operative order is a temporary without prejudice order, the Society’s motion is dismissed.

Released: August 18, 2023 Madam Justice Maria N. Sirivar