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 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.

CITATION: Children’s Aid Society of Haldimand and Norfolk v. G.B., 2021 ONSC 4244

DIVISIONAL COURT FILE NO.: 203/21

DATE: 20210614

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Penny, Sutherland, Favreau JJ.

BETWEEN:

THE CHILDREN’S AID SOCIETY OF HALDIMAND AND NORFOLK, Applicant/Respondent on appeal

– and –

R.B. AND A.W. AND G.B., Respondents (G.B., Appellant on appeal)

Darryl Clarke for the Children’s Aid Society

Elliot Vine for the Appellant, G.B.

James Battin for R.B.

Edward Kiernan for A.W.

HEARD by videoconference (at Toronto): June 8, 2021

Reasons for Judgment

Penny J.

[1] This is an appeal from the decision of R.F. MacLeod of January 20, 2021 in which the motion judge dismissed the appellant’s motion to be added as a party to protection proceedings concerning his three-year-old grandchild. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are the reasons.

[2] There are three issues raised on the appeal:

(1) the standard of review;

(2) whether the motion judge erred in failing to consider the five-part test for adding parties to such proceedings set out in the decision of the Court of Appeal for Ontario in A.M. v. Valoris Pour Enfants et Adultes de Prescott – Russell, 2017 ONCA 601; and

(3) whether the motion judge erred in dismissing, without reasons, the alternative claim for status as a “participant” under s. 79(3) of the Child Youth and Family Services Act, 2017.

[3] In addition, the day before the hearing of the appeal, counsel for the appellant notified the court that he intended to bring an oral motion to be removed from the record. At the outset of the hearing, counsel made such a motion. In essence, counsel advised that his client had been completely unresponsive to all attempts at communication for weeks and that there were non-payment of fees issues.

[4] Counsel candidly admitted that he had not brought or served any formal motion. He also admitted that there was no evidence before the court of his attempts to communicate with his client, including notice that he intended to withdraw, or that his attempts at communication actually came to the appellant’s attention. Further, there was no evidence that the appellant personally was even aware of the hearing date. The appellant was not in attendance.

[5] After hearing submissions, the court refused to entertain counsel’s “motion” to be removed from the record. I said at the time, and will repeat in these reasons, that, to his credit, Mr. Vine proceeded to argue his client’s case skillfully and forcefully. The fact that we dismissed the appeal is no reflection on the quality of the representation the appellant received from his counsel.

Standard of Review

[6] This being a statutory appeal, the appellate standard of review applies: that is, the standard of review is correctness on questions of law and palpable and overriding error on questions of fact and mixed fact and law (unless the question of mixed fact and law involves an extricable legal issue, in which case the standard of review of that issue is correctness).

[7] The appellant argues that the failure of the motion judge to consider the five-part test in A.M. is an error of law. The Society argues that the motion judge did, albeit without specifically citing A.M., consider the A.M. factors and that the appeal involves the application of the law to the particular circumstances of this case – a question of mixed fact and law for which the standard of review is palpable and overriding error. In the alternative, the respondent argues that, even applying the correctness standard, the motion judge’s decision was correct.

[8] Similarly, the appellant argues that the failure of the motion judge to consider, and to give reasons for his decision, on the s. 79(3) alternate relief is an error of law. The Society concedes that the failure to give reasons is a deficiency in the reasons but that, on a proper analysis of the record before the motion judge, he was, in any event, correct to reject (implicitly) the alternative request for participant status under s. 79(3).

[9] I agree with the Society that a thorough review of the motion judge’s reasons as a whole indicates that he was alive to the substance of the A.M. factors and gave consideration to them. Accordingly, the standard of review of the motion judge’s decision on the first ground of appeal is palpable and overriding error. In my view, there was no palpable and overriding error. In any event, the motion judge’s conclusion was correct.

[10] I agree with the parties that the standard of review on the second ground of appeal, because the motion judge gave no reasons for his implicit rejection of participant status under s. 79(3), is correctness. In my view, the decision of the motion judge was correct.

The A.M. Factors

[11] The five A.M. factors are:

(1) whether the addition of the party is in the best interests of the child;

(2) whether the addition of the party will delay or prolong the proceedings unduly;

(3) whether the addition of the parties necessary to determine the issues;

(4) whether the proposed party as a person capable of putting forward a plan that is in the child’s best interests; and

(5) whether the person has a legal interest in the proceeding in the sense that an order can be made in favour of or against the person.

[12] However, as the Court of Appeal said in para. 20 of A.M., the “overarching consideration is the child’s best interests”. It is also clear that the factors do not constitute a cumulative test; each factor is to be considered but not all must favour or disfavour granting added party status (para. 24). Absent an error of law or a palpable and overring error of fact, the discretion of the motion judge should not be interfered with.

[13] I am unable to accept the appellant’s argument that the motion judge failed to consider the A.M. factors at all. I am, in any event, unable to accept that, even on a correctness analysis of the A.M. factors applied to this case, the motion judge came to the wrong result.

[14] The motion judge dismissed the appellant’s motion on the basis that it was not in the child’s best interests to allow the appellant to put forward a competing plan. There was ample evidence to support this conclusion.

[15] The appellant had, in fact, put forward no competing plan. Indeed, to the extent he tried, there were serious, demonstrable problems. For example, he claimed that his ex-partner would help him care for the child. The ex-partner, however, indicated she was not prepared to do that.

[16] Further, the resolution of the Society’s plan was “imminent”. The adding of the appellant as a party would, the motion judge found, “prolong the proceedings unduly.” As detailed below, time was of the essence.

[17] The Society’s plan involved the child being raised in a kin placement with one of her own biological siblings. The appellant was unable to offer a comparable familial setting.

[18] In addition, there were some very troubling concerns about the appellant raised in the Society’s evidence. The child’s mother (A.M.) and father (R.B., the appellant’s son) lived with the appellant leading up to and at the time of the child’s birth. The Society removed the child from her parents’ care not only because of concerns about the parents but because of the appellant’s “failure to tell the Society” about incidents of physical violence between the parents while the child was in utero.

[19] The appellant claimed that the final order placing the child in her father’s care was subject to the appellant’s supervision. This was not correct. The ordered supervision was by the Society, not the appellant. The Society merely approved, as was required, with whom the father and child were to live. The Society’s evidence is that it would not have done so if it had known the appellant would behave in the manner described below.

[20] The appellant’s claim that he alone cared for the child after she and her father moved back in with him was contested by contrary evidence from the Society and the respondent father. It was open to the motion judge to accept the evidence of the Society and reject the evidence of the appellant.

[21] Ultimately, the appellant and his son had a falling out in October 2020. In the aftermath, it transpired that the appellant had not told the Society about his son’s struggles, which included suspected cocaine use, hallucinations, threats of self-harm and refusal to seek medical help. The appellant also did not tell the Society that his son had moved out, leaving the child alone in the appellant’s care (unbeknown to the Society) for a significant period of time.

[22] The child was removed from her father’s care on November 2, 2020. The appellant did not bring his motion for added party status until January 4, 2021. By the date the motion was argued, the child had been in the Society’s care for 278 days – less than three months shy of the one-year statutory cap set by the CYFSA. Because of this appeal, that cap has now been exceeded – the time in Society care is now in excess of 417 days.

[23] Finally, the evidence is that the kin placement proposed by the Society contemplates in-person and telephone contact between the child and the appellant.

[24] In conclusion on this point, the motion judge considered the A.M. factors in substance. There was no error of law. There was ample evidence to support the exercise of the motion judge’s discretion in the circumstances. In any event, the motion judge’s decision was the correct one. I would not give effect to this ground of appeal.

Section 79(3)

[25] The alternative relief, seeking automatic “participant” status under s. 79(3) of the CYFSA, turns on whether the child was in the “continuous” care of the appellant for six months prior to the hearing.

[26] The appellant’s evidence was that he provided the majority of the care for the child during two years prior to his motion. The appellant argues that, if his evidence were accepted, an order under s. 79(3) would be mandatory. He further argues that the motion judge did not make any findings related to whether the appellant cared for the child during the prior 6 months.

[27] As noted earlier, there was evidence before the motion judge from the Society and the child’s father that the appellant did not care for the child continuously for six months prior to the hearing of the motion. The motion judge implicitly accepted that evidence in his analysis of the child’s best interests on the main question of whether to exercise his discretion to grant party status to the applicant.

[28] It is true that the motion judge simply did not address the alternative claim under s. 79(3). In these circumstance, therefore, deference to the motion judge is not warranted. Having regard to the record before the motion judge, however, the correct decision on this point would have been (and is) that the precondition for the application of s. 79(3) was not established by the appellant on a balance of probabilities. The “correct” result, therefore, is that the appellant does not qualify for participant status under s. 79(3).

Conclusion

[29] For these reasons, the appeal is dismissed.

[30] The Society seeks no costs. None are ordered.

Penny J.

I agree _______________________________

Sutherland J.

I agree _______________________________

Favreau J.

Oral Decision Released: June 8, 2021

Written Reasons Released: June 14, 2021

CITATION: Children’s Aid Society of Haldimand and Norfolk v. G.B., 2021 ONSC 4244

DIVISIONAL COURT FILE NO.: 203/21

DATE: 20210614

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Penny, Sutherland and Favreau JJ.

BETWEEN:

THE CHILDREN’S AID SOCIETY OF HALDIMAND AND NORFOLK, Applicant/Respondent on appeal

– and –

R.B. AND A.W. AND G.B., Respondents (G.B. Appellant on appeal)

REASONS FOR JUDGMENT

Released: June 14, 2021