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: 2024 08 19 Court File No.: FO-22-00125
Between:
LINCK Child, Youth and Family Supports, Applicant
— AND —
B.K.M., J.W., D.M., and M.S., Respondents
Before: Justice R. B. Horton
Heard on: July 26, 2024 Reasons for Decision on Motion released: August 19, 2024
Counsel: Ms. Paula DeBoer, for the Applicant society Ms. M. Vicente, for the Respondent, B.K.M. Mr. J. Rehner, for the Respondent, J.W. D.M. and M.S., appearing without representation Ms. H. Jenkins (by agent D. Nash), counsel for Foster parents, L.V. and N.V.
Overview
[1] LINCK Child, Youth and Family Supports (the “Society”) has brought a motion seeking to vary the temporary and with prejudice Order dated November 20, 2022, which places the child K.M. into the temporary care of the Society. The Society seeks to place K.M. in the temporary care of the paternal grandparents, D.W-V. and J.W.
[2] The Respondent Mother, father and maternal grandparents’ consent to the Society’s motion.
[3] The Foster parents, with whom K.M. has resided with since September 16, 2022 (approximately 22 months) opposes the Society’s motion. They have filed responding materials to this motion and seek to have K.M. remain in their care, with the intention to pursue adoption if that should become an option.
[4] In consideration of the issues, I have reviewed the following pleadings: i. Notice of Motion, originally returnable April 12, 2024; ii. Affidavit of Anne Wall, Kin Assessor, sworn April 3, 2024; iii. Affidavit of Family Service Worker, Erin Smith, sworn April 4, 2024; iv. Affidavit of Foster Parent, L.V., dated May 9, 2024; v. Affidavit of Foster Parent, N.V., sworn May 9, 2024; vi. Affidavit of Respondent, maternal grandparent, M.S., sworn May 6, 2024; vii. Affidavit of Respondent, maternal grandparent, D.M., sworn May 7, 2024; viii. Child Protection Application of Society issued September 20, 2022; ix. Answers of the Respondents dated October 14, 2022, October 17, 2022, and December 9, 2022; x. Various Plans of Care filed; and xi. Multiple supporting Affidavits filed on behalf of the Foster Parents.
Background
[5] The child subject to this Motion is K.M. born September 11, 2022.
[6] The mother of K.M. is the Respondent B.K.M.
[7] K.M.’s father is the Respondent J.W.
[8] L.V. is the Foster mother of K.M.
[9] N.V. is the Foster father of K.M.
[10] The paternal grandparents of K.M. are D.W.-V. and J.W.
[11] K.M. was brought to a place of safety September 16, 2022. This place of safety being the home of K.M.’s current foster parents.
[12] The Society commenced a Protection Application September 21, 2022.
[13] On September 21, 2022, a temporary order was granted placing K.M. in the care of the Society subject to supervised parental access.
[14] Upon DNA testing being completed which confirmed J.W. being the biological father of K.M., the paternal grandparents advised they would be presenting a plan for K.M.
[15] A Kinship Assessment was undertaken of D.W.-V. and J.W., by Ms. Anne Wall, Kinship Worker with St. Thomas CAS. The assessment confirmed, a. Negative criminal record checks for both grandparents; b. Three CAS openings were reported in relation to the grandparents. The first between January 16, 2003, and February 28, 2003, which was closed with no reported steps. The two subsequent openings occurred in 2011 and 2012 as a result of the paternal grandparents seeking assistance to manage their son, J.W.’s behavior, defiance and possible drug use. These files were closed with a referral to community services; c. A safety check of the grandparents home was completed and the home was found to be appropriate.
[16] The assessment commenced October 16, 2023, with Ms. Wall meeting with the grandparents on five (5) occasions, ending November 30, 2023.
[17] The Kinship Assessment was completed December 4, 2023. The paternal grandparents were approved as Kinship providers.
[18] The Assessor noted that, while the grandparents have limited understanding of the protection concerns with the mother and father, they are aware that neither parent currently has the required skills and abilities to care for K.M.
[19] The paternal grandparents have only recently begun to develop a relationship with K.M. as a result of the delayed paternity testing confirming J.W. as the biological father.
[20] The paternal grandparents began access visits on December 29, 2023. These were initially for 3 hours, however this was expanded to overnights beginning January 5, 2024. The grandparents recognized that transitional visits were a necessity and worked with the foster parents to achieve this successfully.
[21] The foster parents, L.V. and N.V., have provided care for K.M. since September 16, 2022, a period of approximately 22 months.
[22] There is no question that L.V. and N.V. have welcomed K.M. into their home and hearts. They have included K.M. in all family activities and trips, along with their other two children. They have expressed a sincere desire to adopt K.M.
[23] The multitude of affidavits of family members of L.V. and N.V., filed in response to the Society’s motion, speak unequivocally to the love and support that K.M. has, and continues to receive in this foster home. It is evident that K.M. is supported by a large extended family community.
Positions
[24] The Society seeks to place K.M. in the temporary care of the paternal grandparents. The Respondent parents, maternal grandparents and the paternal grandparents, consent to this placement.
[25] The foster parents oppose the Society’s motion. They raise concerns of the effect the removal of K.M. from their care will have on him given the extended time he has been in their care and the resulting attachment between K.M., themselves, and their extended family. The foster parents submit that they should be re-defined as kin, though there is no motion before the Court seeking this relief.
Analysis
[26] The definition of “foster parent” is 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).
[27] It is uncontroverted for the current motion that the care provided by L.V. and N.V. to K.M. has been a service provided as foster parents.
[28] Notably, the legislation is clear that foster parents are excluded from the definition of “parent.” Therefore, N.V. and L.V. do not qualify as parties under Part V of the C.Y.F.S.A..
[29] 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.
[30] 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.
[31] 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.
[32] The foster parents cannot, at this time, advance a plan to care for the child permanently, as they have no standing to do so.
[33] The timelines within the legislation are to be applied strictly. The fact that they have not been adhered to, in that K.M. has been in the care of his foster parent for 22 months, cannot alone override the fundamental principle of kin placement and the prioritization of returning a child to his or her family.
[34] Within the confines of a temporary order, and specifically in the absence of a determination that no viable family placement exists, it is inappropriate to simply accept that the foster family is in the child’s best interest. In my view, at this stage they are unable to utilize the obvious attachment and therefore status quo to elevate themselves above that of K.M.’s family; to do so would negate the legislated priorities of family.
[35] At this stage in the proceeding, the family of K.M. must be given the opportunity to have K.M. successfully placed in their care. Undoubtedly, this will be a difficult transition for the foster parents, as they have a strong attachment. It would be disheartening if they did not. Foster families are not selected based upon a sterile or casual outlook to their duties. It would be unusual, if not contrary to the needs of children, if the foster family was unattached to the child. In this case, after 22 months, attachment is real. The movement of K.M. to his paternal grandparents will cause a fracture in this attachment, however the family placement, in my opinion, must supersede this concern. The foster parents were a paid resource of the Society, and it is the Society that is tasked with determining where the child is to be placed. To favour the foster parents at this stage, without first determining whether a suitable family placement exists, would be to override the principles of family integrity, and the value of family placement, prioritized within the C.Y.F.S.A..
Orders
[36] Based on the foregoing, the following order is made:
- The Order of the Honourable Madam Justice Vickerd dated November 30, 2022, is varied as follows: a. The child, K.M., born September 11, 2022, is placed in the temporary care of the paternal grandmother, D.W.-V. and the paternal grandfather, J.W., subject to Society Supervision and the following specified terms and conditions: i. The paternal grandparents shall allow Society representative(s) access to their home on an announced and unannounced basis; ii. The paternal grandparents shall allow Society representative(s) independent access to the child as requested; iii. The paternal grandparents shall sign all necessary Forms of Release pertaining to themselves and/or the child as requested by the Society and subject to their ability to obtain independent legal advise prior to should they wish; iv. The paternal grandparents shall notify the Society two (2) weeks in advance of any change in address or contact information; v. The paternal grandparents shall provide safe, stable, clean housing, free from hazards for the child; vi. The paternal grandparents shall ensure that the medical, developmental and emotional needs of the child are met; vii. The paternal grandparents shall not allow contact between the mother and the father with the child except as is permitted by Court order or as may be approved by the Society. b. The mother, B.K.M., shall have access as arranged by the Society, this access shall be supervised by the Society or its designate and shall be offered not less than one (1) time per week, and such other times as approved by the Society. c. The father, J.W., shall have access as arranged by the Society, this access shall be supervised by the Society or its designate and shall be offered not less than one (1) time per week, and such other times as approved by the Society.
Released: August 19, 2024 Signed: Justice R. B. Horton