SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-08-00000107

DATE: 20130723

RE: The Children’s Aid Society of the County of Simcoe, Applicant

AND:

D.C. and W.B., Respondents

BEFORE: The Hon. Mr. Justice J.R. McCarthy

COUNSEL:
S. Kermanshahi, for the Applicant

L. Paterson-Kelly, for the Respondent D.C.

C. Severn, for the Respondent W.B.

D. Lyons, for K.C.

HEARD: July 23, 2013

ENDORSEMENT

WARNING

This is a case under Part III – Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8)

76(11)

85(3)

PROHIBITION: IDENTIFYING CHILDREN – 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.

PUBLICATION – No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

OFFENCES – A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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.

[1] K.C., the maternal aunt of O.C-B. (the child), born […] 2007, brings a motion to have herself added to the within child protection proceeding (“the proceeding”) pursuant to Rule 7(5) of the Family Law Rules (FLR) and for an order appointing counsel for the child pursuant to section 38 of the Child and Family Services Act (CFSA). The motion is supported by the Respondent mother (RM), who is the sister of K.C. The motion is opposed by the Respondent father (RF) and the Applicant Children’s Aid Society (CAS). There is a summary judgment motion scheduled for September 27, 2013 in which the CAS is seeking an order deeming the child to be a person in need of protection and a final order for Crown wardship. The child is presently placed with her paternal grandmother. A kinship assessment of K.C. has been completed. The parties are awaiting the issuance of the report.

K.C. AS A PARTY TO THE PROCEEDING

[2] I am not satisfied that the K.C. is a proper party to the proceeding. She does not fall under the category of necessary parties under FLR 7(4); she is not a person with a right to participate under s. 39 of the SFSA; she has no enshrined or entrenched parental rights at stake. I am of the view that her participation in the proceeding may cause unnecessary delay and that a multiplicity of parties is not warranted.

[3] The CAS will have to meet the onerous test on the summary judgment motion that there is no genuine issue for trial. K.C. is capable of forming an integral part of the RM’s parenting plan. The kinship assessment might serve as a complement to that plan. The viability of that plan can be put before the court for consideration without K.C. being named as a party. The CAS will either have to produce the kinship assessment to the RM in advance of the summary judgment motion or face an adjournment request on the basis that there is outstanding evidence to be put before the court on the issues.

[4] The ability of an existing party to present a plan of placement of a child with a non-party can be a significant consideration in deciding whether to add the non-party. See: Catholic Children’s Aid Society of Toronto v H (D), 2009 ONCJ 2. In this case, I find it to be a critical consideration. This is not a case where the mother of the child is unavailable, disabled, disinterested, deceased, unrepresented or unwilling to present a parenting plan of her own.

[5] Any differences between K.C. and the RM appear to me to be minor. On the record before me, it is evident that they have an overall commonality of interest and that their respective plans would each involve a degree of shared responsibility and interdependence. I accept that K.C. may have relevant evidence to offer in the case but that should not elevate her from a witness to party status. See: Noik v Noik (2011) 2001 27970 (ON SC), 14 R.F.L. (5th) 370 (Ont. S.C.J.).

[6] I agree with counsel for the RF that a multiplicity of parties is not contemplated in section 39 (2) of the CFSA. Before adding a party to a child protection proceeding, the court should give consideration to the principles summarized in CAS v SH, SW and DR, 2002 4733 (ON SC), [2002], O.J. No. 4991, namely whether the proposed addition is in the best interest of the child, whether it will delay or prolong the proceedings, whether the addition is necessary to determine the issues and whether the additional party is capable of putting forward a plan that is in the best interests of the child. K.C. has not satisfied me that her participation as a party is in the best interests of the child. Her plan can be incorporated into and put forward through the mother, either as an alternative or in harmony with it. There is a distinct possibility that multiple parties to a proceeding can lead to undue delay. K.C.’s evidence may weigh on the court’s determination of the issues but her status as a party is not necessary to determine the issues. I note that the maternal grandparents have been afforded temporary custody pending court disposition of the issues without being made parties to the proceeding. Their right to participate derives from section 39(3).

[7] For the reasons set out above, I have exercised my discretion against adding K.C. as a party to the proceeding. That part of the motion is dismissed.

LEGAL REPRESENTATION OF THE CHILD S. 38 CFSA

[8] The criteria to be considered for a court in determining whether legal representation is desirable to protect the child’s interests are set out in ss 38 (4) of the CFSA. In this case, legal representation is deemed to be desirable unless the court is satisfied, taking into account the child’s views and wishes if they can be reasonably ascertained, that the child’s interests are otherwise adequately protected. This subsection would appear to shift the onus on to the person opposing legal representation for the child to satisfy the court that the child’s interests are otherwise adequately protected.

[9] In the case of Children’s Aid Society of Durham (County) v S. (A.) 2011 CarswellOnt 1438, 2011 ONSC 1001, Margaret Ann C. Scott J summarized the criteria to apply to determine whether or not it is in the best interests of the subject child to have counsel appointed for them. That list is instructive but not exhaustive.

[10] The record demonstrates that the child is receiving counselling through New Path, which I accept to be a safe, reliable and neutral setting in which a child might express his or her preference without involving her in the controversy of a hearing. There is some evidence that the child is also expressing her own preferences on her situation.

[11] Overall, I am not satisfied that either her present placement or the counselling through New Path can provide adequate assurance to the court that the child’s interests are protected. I am not satisfied that the child’s views and preferences cannot be ascertained; nor is it apparent to me that those views and preferences would not be given some weight by the court in spite of her tender age. I do not mean by this that the present placement is inappropriate or that the child is not in need of protection. I do not need to make such findings here in order to determine that legal representation may be the most reliable means of ensuring that the child’s views and preferences, however conflicted, are made known to the court. I anticipate that counsel for the child would play an important role to play in assessing all of the evidence from the child’s point of view. This is not a case where there is an absence of competing parenting or custody plans in place. In my view, where there are viable, competing parenting plans being proposed, that can only serve to heighten the importance of legal representation for a child.

[12] While there may be a delay in these proceedings resulting from this order, that delay is wholly justified by the fact that the child’s present and future placement and living arrangements are at stake. The court’s decision in this case could be a life defining event for the child. In making this order now, it is hoped that the legal representative can become quickly conversant with the evidence and be in a position to meaningfully participate in the process in short order.

[13] While there is a natural reluctance to engage any child of tender years in a legal proceeding, it appears from the record that she has been made aware, rightly or wrongly, of the proceedings and their importance. In light of the fact that the child remains unlikely to participate in the proceeding or to provide her views and preferences in a conventional way, there is some benefit to the child in having representation in the matter through counsel. This affords her a voice without the accompanying strain of participation. I cannot see how this would be detrimental to the child or the proceeding.

[14] Having balanced the criteria in subsection 38(4) of the CFSA, I find that legal representation for the child is desirable. That part of the motion is allowed.

DISPOSITION

[15] The part of the motion seeking to add K.C. as a party to the proceeding is dismissed. The part of the motion seeking legal representation for the child is allowed. Pursuant to ss. 38(3) and 38(5) of the CFSA, it is ordered and directed that the Office of the Children’s Lawyer provide immediate legal representation to the child for the purposes of this proceeding.

COSTS

[16] There has been divided success on the motion. If the parties are unable to resolve the issue of costs, they make take out an appointment to address the issue of costs before me by contacting the trial coordinator at Barrie.

THE OFFICE OF THE CHILDREN’S LAWYER

[17] A copy of this order together with sufficient details of the child’s name, date of birth and present whereabouts shall be provided forthwith to the OCL by both the moving party and court staff.

McCARTHY J.

Date: July 23, 2013