WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(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
CITATION: J.S.-R. v. Children’s Aid Society of Ottawa, 2020 ONSC 6642
COURT FILE NO.: 20-DC-2595
DATE: 2020/10/29
ONTARIO
DIVISIONAL COURT - SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF R.S.-R. (DOB 2011) and E.S.-R. (DOB 2015)
AND IN THE MATTER OF A MOTION TO BE ADDED AS A PARTY BROUGHT BY H.S.-R.
BETWEEN:
J.S.-R. Appellant
J.S.-R.-Self-Represented, Assisted by Brian Doody
– and –
Children’s Aid Society of Ottawa Respondent
Juliet Kim / Hayley Marrison-Shaw, for the Respondent
Heard: October 28, 2020
Endorsement
Mackinnon J.
[1] This motion is brought by H.S.-R. asking to be added as a party to the appeal. The appeal is scheduled to be heard on December 15, 2020. H.S.-R. appeared as a self-represented litigant but advises that she has secured a lawyer for the appeal. Her motion is supported by the appellant and opposed by the respondent.
[2] The moving party is the appellant’s 19-year-old daughter. She is a student and lives with her boyfriend and his family. She resided with her mother and her two younger sisters until they were apprehended in April 2018. She has attended some access with them, both before and after the Final Order was made in February 2020.
[3] If she is added as a party to the appeal, she would like to support her mother in seeking to set aside the extended society care order. She believes the children are better off being returned to their mother. H.S.-R. is not currently proposing herself as an alternate plan for the children. She is not able to undertake the care of her siblings now. If an opportunity arose for her to be considered as a kin placement for them in the future she would like to do so.
[4] The Final Order awarded her access to her siblings in the discretion of the Society. If added as a party to the appeal, she would submit that the access order leaves the Society too much freedom to decrease or suspend access on a whim. She would ask for a specified access schedule.
[5] H.S.-R. did not participate in the trial as a witness or by presenting herself as a potential caregiver for the children. The trial judge said at [49] “In my view, limited access to their mother, such as in writing, is in the children’s best interests. More importantly, the children should not be cut off from their older sister or their maternal grandmother.”
[6] The appellant submits there is no downside to adding H.S.-R. as a party to the appeal. The appellant also submits that as an access right holder pursuant to the Final Order, H.S.-R. has a legal interest in the outcome of the appeal
[7] The Society submits that the motion should be dismissed because H.S.-R. does not meet the test to be added as a party.
[8] The Family Law Rules, O.Reg. 114/99 do not apply here. Divisional Court has jurisdiction over both the appeal and this motion. Rule 13.03(1) of the Rules of Civil Procedure, R. R.O. 1990, Reg. 194 applies and states:
13.03 (1) Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them. R.R.O. 1990, Reg. 194, r. 13.03 (1); O. Reg. 292/99, s. 4; O. Reg. 186/10, s. 2; O. Reg. 82/17, s. 16.
[9] The accepted test for adding parties in a child protection hearing is found in Children’s Aid Society of London and Middlesex v. H(S), 2002 46218 (ON SC) at paras 22 and 23: …
(i) whether the addition of the party is in the best interests of the child,
(ii) whether the addition of the party will delay or prolong proceedings unduly,
(iii) whether the addition of the party is necessary to determine the issues, and
(iv) whether the additional party is capable of putting forward a plan that is in the best interests of the child.
[10] A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 adds that not all factors need favour the person seeking party status for the order to be granted.
[11] Consideration of these factors leads to the conclusion that H.S.-R should not be permitted to intervene in the appeal from the order for extended society care. Her position would mirror the appellant’s and would be bound by the same record of evidence that was before the trial judge. Adding her as a party to present the same or similar legal arguments as the appellant would not contribute to the best interests of the children.
[12] H.S-R. has a personal interest in the outcome of the appeal from the extended society care order, but she does not have a legal interest. Her hope to propose a plan in future for her sisters is understandable but does not create a legal interest. Nor is her participation necessary to the determination of the appeal from the extended society care order.
[13] A similar outcome is found in Children’s Aid Society of Ottawa Carleton v. B.H., 2017 ONSC 4799 where a paternal aunt was not added as party to her brother’s appeal because her position would be largely the same as his.
[14] H.S.-R. may intervene in the appeal from the access order made by the trial judge. The award of access to her does create a legal interest. As set out above in paragraph [5] the trial judge appeared to draw a distinction between her award of access to the mother and to H.S-R. in using the words, “more importantly”, with respect to the sibling contact. This suggests that the best interests of the children was and is engaged. Even though her legal arguments may well be the same as the appellant’s, that does not necessarily mean the outcome would be the same for both.
[15] H.S.-R. has advised the court that she will comply with the timetable set by Labrosse J. and says she will deliver her materials by November 20. She said she would not be asking to postpone the appeal which she knows will be heard on December 15, 2020. H.S-R. is bound by the trial record and can only seek an order from the appeal panel itself for permission to introduce fresh evidence which must be limited to her personal knowledge and observations, and relevant to the specific issue, namely the appeal from the trial judge’s award of access to her.
[16] For these reasons the motion is allowed in part. H.S.-R. may intervene in the appeal on the single issue of the access order made in her favour. For that purpose, she shall be a responding party, and she shall comply with the timetable established by Labrosse J. for the delivery of her documents. The appeal date of December 15, 2020 is pre-emptory for her.
Mackinnon J.
Released: October 29, 2020
CITATION: J.S.-R. v. Children’s Aid Society of Ottawa, 2020 ONSC 6642
COURT FILE NO.: 20-DC-2595
DATE: 2020/10/29
ONTARIO
DIVISIONAL COURT-SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF R.S.-R. (DOB August 27, 2011) and E.S.-R. (DOB July 13, 2015)
BETWEEN:
J.S.-R. (Mother) Appellant
– and –
Children’s Aid Society of Ottawa Respondent
Endorsement
Mackinnon J.
Released: October 29, 2020