This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.-(8) 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.
85.-(3) A person who contravenes subsection 45(8) (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.
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C89/11
DATE: 2015-03-06
BETWEEN:
Catholic Children’s Aid Society of Hamilton
Applicants
– and –
J.G. (mother)
And
D.A. (father noted in default)
And
V.D. (father noted in default)
Respondents
Ms. Lashell Eaton – Counsel for the Applicants
Mr. J. Orme – Counsel for the Respondent mother
Mr. Sam Garcea (Duty Counsel for L.G. maternal grand-mother)
HEARD: March 6, 2015
THE HONOURABLE MR. JUSTICE PAZARATZ
[1] I was asked to deal with 2 motions today:
a. The scheduling of a summary judgment motion commenced by the CCAS.
b. A motion brought by the maternal grandmother to be added as a party.
[2] Some background information:
a. The subject children are L.B.A. age 4 and I.L.G-D. age 15 months.
b. Both of their fathers have been noted in default and are not participating in the process.
c. The mother has a lengthy and complex history with the Society in relation to these children and also an older child no longer in her care.
d. At various times these children have been in care. L.B.A. was initially apprehended in January 2011.
e. On September 16, 2014 the children were apprehended while in the care of the mother. They have remained in foster care ever since.
f. The Society seeks Crown wardship with no access in relation to both children. Adoption is proposed. The Society’s materials allege serious and long-standing problems in relation to the mother and her ability to care for children.
g. On January 19, 2015, at a Settlement Conference at which both the mother and the maternal grandmother were present, a 5 to 7 day trial was set for the sittings of May 25, 2015. A Trial Management Conference was also set for April 20, 2015.
h. On February 20, 2015 the Society served the mother with a summary judgment motion returnable today.
i. On February 25, 2015 the maternal grandmother (who is self-represented and was assisted by duty counsel today) filed a handwritten notice of motion and brief affidavit asking to be added as a party to the proceedings.
[3] The maternal grandmother’s affidavit includes the following information:
a. She explained the circumstances surrounding some involvement she had with the CCAS about 15 years ago. She said a neighbour reported her “in retaliation” about some complaints the maternal grandmother had made. She said a teacher also accused her of sending her daughter to school dirty and in dirty clothes.
b. She briefly explained about doing the laundry; said she learned from that experience; and that CCAS closed its file.
c. She said she now wants custody of both of L.B.A. and I.L.G-D. She has adequate housing.
d. She said she is on Ontario Works, and can make arrangements for daycare.
e. She said she is aware of her grandson’s needs and is prepared to do everything she can to work closely with a behavioural therapist.
f. She said she is prepared to work with CCAS.
g. She said CCAS has expressed concern about “my anger outbursts” and she has signed up for an anger management course.
[4] The mother’s lawyer supports the maternal grandmother’s request to be added as a party.
[5] The Society opposes the request. The Society’s lengthy materials include the following information:
a. Commencing in the fall of 2014 the Society conducted a kinship assessment of the maternal grandmother. On November 28, 2014 she was sent a letter explaining why she was not being approved.
b. The maternal grandmother has significant housing issues and as of February 2015 she had been evicted from her home, and lacked appropriate furnishings.
c. She has limited income and a history of financial difficulties. She does not appear to grasp the financial requirements of caring for her grandchildren.
d. She has been verbally aggressive in her interactions with Society staff. She advised a Society worker that she was not called as a witness at a Crown wardship trial in relation to the mother’s older child due to her tendency to be angry or have outbursts.
e. The maternal grandmother’s history of child protection involvement as a parent includes allegations of neglect similar to the concerns raised about the mother as a parent. Many of the Society’s concerns regarding the mother as a parent occurred while the mother and the maternal grandmother were residing together.
f. The relationship between the maternal grandmother and the mother has included significant conflict and chaos. The children have been exposed to conflict between them.
h. The maternal grandmother’s relationship with the mother has included physical altercations which have placed the children at risk of physical and emotional harm.
i. The maternal grandmother does not fully understand the complex parenting needs of L.B.A. which are quite difficult at times.
j. The maternal grandmother has consistently minimized concerns regarding the mother.
k. The maternal grandmother verbalizes the need to participate in anger management and other services. But she has not been able to demonstrate a true understanding of the experience of the children, or the protection concerns.
l. The maternal grandmother has not be able to acknowledge her role in the problematic care the children received while the mother and the children were residing with the maternal grandmother. She was not protective of her grandchildren.
[6] In determining whether to add a person as a party to a child protection proceeding, the court, in Children’s Aid Society of London and Middlesex v. S.H., 2002 CanLII 46218, [2002] O.J. No. 4491, 2002 CarswellOnt 4048 (S.C.J.), enunciated principles that should govern the exercise of discretion (at paras. 22 & 24):
(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.
[7] A fifth principle was set out in Children's Aid Society of London and Middlesex v. J.P., 2000 CanLII 20732 (ON SC), [2000] O.J. No. 745 (S.C.J.) and stated (at para. 24):
In addition to the foregoing list of principles, I must also consider whether the person seeking to be added as a party has a legal interest in the proceedings.
[8] My analysis of this motion includes the following considerations:
a. The maternal grandmother’s motion is brought quite late in this lengthy child protection process.
b. She was present (although not a party) when the trial date was set on January 19, 2015. By that point she had already known for two months that her kinship application had not been approved by the Society.
c. She brought her motion February 25, 2015 – after the Society served its summary judgment motion, and only three months prior to the scheduled trial date.
d. Her supporting affidavit is threadbare and doesn’t address many important questions about her own involvement in the concerning history of these children.
e. She does not explain her delay in seeking to become a party.
f. She provides a superficial description her of custody proposal, with general expressions of love, physical preparedness, and a willingness to pursue anger management counselling (without elaborating about this very important and long-standing concern clearly identified by the Society).
g. The maternal grandmother’s materials do not seriously address whether adding her as a party would be in the best interests of the children – and in considering the lack of particulars or reassurance in her affidavit, I am not satisfied that adding her as a party would be in the best interests of the children.
h. While the maternal grandmother insists adding her as a party won’t delay matters, because she will make herself available for the trial date (and the date for the summary judgment motion once finalized), it is inevitable that adding another party (on the eve of a summary judgment motion and less than three months prior to trial) will prolong proceedings unnecessarily.
i. The mother supports the maternal grandmother’s request to be added as a party, and (perhaps as an alternate position) her request in relation to the children. It is not necessary for the maternal grandmother to be added as a party in order for the merits of her being an option in the children’s lives to be considered. This can be presented through the mother and her counsel. The maternal grandmother can still give evidence as a witness.
j. Similarly, the maternal grandmother’s proposed involvement can be fully identified within the summary judgment motion, as part of the mother’s response.
k. The Society has raised serious questions as to whether the maternal grandmother is capable of putting forward a plan that is in the best interests of the children. The maternal grandmother declined an opportunity to adjourn this motion to provide further response. Based upon the materials filed, the court must take a realistic view of the viability of the maternal grandmother’s proposal.
[9] As with many decisions which have to be made in child protection proceedings, the court must always be mindful of time, and the need for children to have resolution and permanence in their lives in a timely manner.
[10] In other circumstances – perhaps at a much earlier stage in the process – the maternal grandmother’s request to be added as a party might have resulted in a different type of analysis – and a different result.
[11] But speaking plainly her materials are very late and very weak. Her motion to be added as a party is dismissed.
[12] Summary judgment motion set for argument on March 26, 2015 2:30 p.m.
[13] Existing Order to Continue.
Pazaratz, J.
Released: March 6, 2015
COURT FILE NO.: C89/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid of Society of Hamilton
Applicants
-and-
J.G. (mother)
D.A. (Father noted in default)
V.D. (Father noted in default)
Respondents
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: March 6, 2015