Superior Court of Justice – Ontario (Family Court)

CITATION: H.V. v. Children's Aid Society of London and Middlesex, 2015 ONSC 6667

COURT FILE NO.: C112/05-12/13

DATE: October 28, 2015

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

RE: H.V. and K.V., moving parties

AND:

CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, STEPHANIE H., GARRETT D., T.D. and LIONEL D., respondents

BEFORE: VOGELSANG J.

COUNSEL: H.V. (moving party) in person Timothy G. Price for the Society Julie Lee for the Children’s Lawyer T.D. in person No other respondent appears

HEARD: October 16, 2015

ENDORSEMENT

[1] H.V. institutes a motion pursuant to rule 7(3), (4) and (5) of the Family Law Rules, O. Reg. 114/99 for an order adding himself and his wife, K.V., as party respondents in this Crown wardship application. Those subrules are formulated as follows:

7(3) A person starting a case shall name,

(a) as an applicant, every person who makes a claim;

(b) as a respondent,

(i) every person against whom a claim is made, and

(ii) every other person who should be a party to enable the court to decide all the issues in the case.

(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child and Family Services Act, shall be named as a party, unless the court orders otherwise:

1. A case about custody of or access to a child.

2. A child protection case.

3. A secure treatment case (Part VI of the Child and Family Services Act).

(5) The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person. (my emphasis)

[2] Mr. and Ms. V. operated a foster home for Connor Homes – a provincially licensed agency contracted with the Children's Aid Society of London and Middlesex to provide residential care for three children: K.R., J.D. and A.D., now 6, 4 and 1 years of age respectively. The children have been with them for over one year.

[3] The V’s are experienced foster parents and have adopted their fostered children in the past. They have fostered these three children for a long time and have clearly stated their desire to adopt them. The Society has refused their proposal. It prefers a kin placement with the children’s grandmother, T.D.

[4] Twelve weeks ago, a dispute between Connor Homes and the V’s caused the former to cancel the licensing of the foster home and to demand its closure. On August 12, 2015, Raikes J. determined that the children should remain in the V. home pending determination of this motion.

[5] In Children's Aid Society of London and Middlesex v. H.(S.), 2002 46218 (ON SC), [2002] O.J. No. 4491 (Sup. Ct.), G.A. Campbell J. pointed out several discretion-structuring factors where individuals seek party status in a protection case. He said:

22 … In summary, then, I find that I must consider the following principles before adding a party to a child protection hearing:

(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.

[6] Campbell J. followed his statement by approving the decision of Marshman J. in Children's Aid Society of London and Middlesex v. P.(J.), 2000 20732 (ON SC), [2000] O.J. No. 745 (Sup. Ct.). In that case, she held that the discretion to add a party under r. 7(5) should not be exercised unless an order could be made in the proceeding in favour of or against the person.

[7] In her affidavit sworn October 9, 2015, social worker Kirsty Elliott sets out the Society’s position that the protection issues among the present parties to the application should be determined before the V.s can advance their case as potential adoptive parents. It is apparent that, from that perspective, these facts could meet neither the test set out by Marshman J. nor the third requirement of Campbell J., supra.

[8] Ms. Lee, counsel for the children, opposes the motion for party status. She joins Mr. Price in relying on the reasons of the Court of Appeal in R.L. v. Children's Aid Society of the Niagara Region, 2002 41858 (ON CA), [2002] O.J. No. 4793 (C.A.):

9 … [The] Act envisages that, if it is not possible to return a child to his or her parent, the possibility of placement with a member of the child's extended family will be explored expeditiously and determined prior to any hearing at which society or Crown wardship is sought. The Act does not envisage a contest between members of a child's family and a foster parent at a hearing to declare whether the child should be declared to be a society or Crown ward. However, foster parents may play a role in the child protection proceedings. As this court has stated in G.(C.) v. Catholic Children's Aid Society of Hamilton-Wentworth (1998) CarswellOnt 2578 (C.A.), "[t]he legislature has demonstrated sensitivity to the circumstances of foster parents who have had care of the same children for an extended period of time". Subsection s. 39(3) of the Act provides that foster parents who have cared for a child continuously during the six months immediately before the hearing are entitled to the same notice of the proceeding as a party, they are entitled to be present and represented by a solicitor at the hearing, and to make submissions to the court.

[9] The Court of Appeal next made these comments about foster parents in the V.’s position:

11 The Act also envisages that a foster parent may wish to adopt a child. Section 144 of the Act states that, where a society makes a decision refusing to place a child with a person, including a foster parent who is caring for the child, for adoption, a Director may review the decision of the Society and may confirm or rescind the decision and do anything that the Society may do with respect to the child's placement. In reviewing any decision, the Director must take into account the importance of continuity of the child's care.

12 The adoption process under the Act, of course, is one that comes at the final stage of the child protection proceedings. In this case, the proceedings, although commenced over two years ago, are still at the initial stage. As noted earlier, the threshold hearing to determine whether they are in need of protection has yet to be heard. As will become apparent, the appellants' expectations are more consonant with the final stage of the proceedings. This may be understandable, given the delay. For example, the record reveals that the appellants, at the same time as they brought this application in the superior court, sought a s. 144 review by the Director in regard to what they viewed as the Society's refusal to place the children with them for adoption. Not surprisingly, they were advised that their request was premature because the children were not as yet available for adoption. It is our view that, although again perhaps understandable given the inordinate delay in this case, their application in the superior court is, likewise, misconceived. …

[10] Although not cited to me, R.L. v. Children's Aid Society of the Niagara Region, supra was distinguished by Czutrin J. in Catholic Children’s Aid Society of Toronto v. S.(R.D.), 2008 8607 (ON SC), [2008] O.J. No. 856 (Sup. Ct.) where a further non-exclusive set of considerations was propounded where foster parents sought party status. The Court of Appeal decision was described as mainly involving a question of the invocation of parens patriae jurisdiction, and only collaterally the issue of adding a party.

[11] While interesting questions will remain in future cases, I am satisfied, on balance, that this is not a proper case for a best interests comparison within the confines of the child protection application yet unresolved as between the Society and the existing parties.

[12] Mr. and Ms. V. are aware of their enhanced rights under s. 39(3) of the Child and Family Services Act, R.S.O. 1990, c C.11 and, I am sure, are equally knowledgeable about their ability to seek leave of the trial judge for an even greater role; however, at this juncture it would not be proper exercise of my discretion to make the order they seek. The motion is dismissed.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: October 28, 2015