Superior Court of Justice – Ontario
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
ONSC 7154
COURT FILE NO.: C761/01
DATE: 2015-11-18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Children’s Aid Society of Hamilton, Applicant
AND:
L. K., J.S. and Constance Lake First Nations, Respondents
BEFORE: The Honourable Mr. Justice R. J. Mazza
COUNSEL: Kory Mikalski, Counsel for the Applicants
Kathleen Bingham, Agent for Susan Sullivan, Counsel for the child, J.K.
HEARD: November 13, 2015
ENDORSEMENT
[1] This is a motion brought by Ms. Sullivan on behalf of the child, J.K., to be added as a party to the proceeding.
[2] Mr. Sullivan represents the child through the Office of the Children’s Lawyer.
[3] The Society has brought a motion for summary judgment to be scheduled for November 30, 2015, regarding A.J.-K. for an order for Crown Wardship with no access.
[4] J.K. is not a subject of this proceeding, but is the subject of an independent proceeding.
Background
[5] It is not disputed that J.K. and A.J.-K. are siblings, A.J.-K. being born in 2012, J.K. being born in 1999. The mother of both children is L.K.
Submissions by Ms. Bingham
[6] Ms. Bingham, who was Agent for Ms. Sullivan, principally relying on the case of Children’s Aid Society of London and Middlesex v. H.(S.) 2002 46218 (ON SC), submitted that the child, J.K. meets the five criteria set out in that case, and therefore she has requested that the court add her as a party to the proceeding.
[7] To begin with, Ms. Bingham submitted that adding J.K. is in the best interests of A.J.-K., since it would likely lead to a growing relationship between the two siblings.
[8] This is particularly important, Ms. Bingham submitted, since the Society has not been actively facilitating the relationship between the siblings, leaving it to J.K. to arrange her own access with her younger brother.
[9] Ms. Bingham went on to submit that adding J.K. as a party would not delay the proceedings, simply because Ms. Sullivan is prepared to proceed on November 30, 2015, the date scheduled for the summary judgment motion.
[10] Further adding J.K. as a party is necessary to determine the issues, Ms. Bingham submitted, particularly since the Society has not stipulated its intention to pursue sibling access, and since J.K. does not have any contact with her biological mother, L.K., it is not likely that the access will be raised by either L.K. or the Society.
[11] As well, Ms. Bingham submitted, although J.K. has not provided a plan of care, nevertheless J.K. will be providing the court with a valid alternative; namely evidence in accordance with Section 59 (2.1) of the Child and Family Services Act.
[12] Lastly, as to whether or not J.K. has a legal interest, Ms. Bingham submitted that J.K. has established that legal interest inasmuch as the court is empowered to make an access order, which will have a direct effect on J.K. and A.J.-K.
[13] In support of her position, Ms. Bingham presented the court with three cases, namely The Children’s Aid Society of Halidmand and Norfolk v. T.K., an unreported decision; The Children’s Aid Society of the Region of Peel v. K.J.F. and K.P.F. 2009 ONCJ 198; and the third case, The Children’s Aid Society of Hamilton-Wentworth v. B.F. 1981 222.
[14] In all three cases Ms. Bingham submitted the court in its discretion chose to add these children as parties.
Submission by Mr. Vamos
[15] Mr. Vamos, who in fact presented no material, nevertheless submitted on behalf of the mother that she supports the motion brought by the child, J.K.
Submissions by Ms. Mikalski
[16] Ms. Mikalski submitted on behalf of the Society that A.J.-K. was in care from his birth on September of 2012 and remained in the Society’s care until April 17, 2014, after which he was returned to the care of his mother until May 7, 2015.
[17] Ms. Mikalski further submitted after a period of 19 months between 2012 and April 17, 2014, at no time did J.K. visit A.J.-K. Further, between April 17, 2014, and May 7, 2015, the Society is not aware of any further visits beyond the undisputed five visits since A.J.-K.’s birth.
[18] Furthermore, Ms. Mikalski submitted, during a meeting with Ms. MacKenzie from the Society and J.K., J.K. advised or admitted to wanting access only to her sister J.K. and A.K., but expressed no interest in seeing and having access with A.J.-K.
[19] Ms. MacKenzie also made J.K. aware of the details of A.J.-K.’s access schedule, and that she was permitted to visit the maternal grandmother’s house any time. However, J.K. did not avail of herself the opportunity of visiting A.J.-K., except for one visit which took place on September 10, 2015, for a family birthday party.
[20] Ms. Mikalski submitted, therefore, there is no existing relationship between A.J.-K. and J.K.
[21] Ms. Mikalski submitted that regarding the first case, The Children’s Aid Society of Haldimand and Norfolk v. T.K., the child was added as a party after the Court of Appeal ordered a retrial of a trial at which that particular child had already been a participant.
[22] With respect to the case before Justice Clark, Children’s Aid Society of Peel v. K.J.F. and K.P.F., a significant factor was the issue of parental alienation, and the 19-year-old who was added to the proceeding presented a plan of care for his younger brother.
[23] In the Hamilton-Wentworth case, Ms. Mikalski submitted that although Justice Steinberg added a sibling as a party to the proceeding, he also dismissed the child’s claims in the proceeding.
[24] As for whether or not J.K. has met the criteria as set out in the London-Middlesex case, Ms. Mikalski submitted that firstly it is not in A.J.-K.’s best interests, since there is essentially no relationship between himself and J.K.
[25] Secondly, in as much as J.K.’s counsel has not received any materials in the Society’s possession, materials which are voluminous, adding J.K. as a party would mean for the Society to make those materials available, which would lead to an extended period of time to review those materials, and which would consequently cause undue delay contrary to the Society’s mandate to require for the child, permanency as soon as possible.
[26] Regarding the issue of whether or not J.K. should be added to determine the issues, Ms. Mikalski submitted the court has all the necessary information it requires with respect to the child A.J.-K. to assist it in its consideration of whether there is a need for developing a relationship between J.K. and her younger brother.
[27] As well, it is not disputed that J.K. has not put forth a plan of care. Mr. Mikalski submitted that the court give that requirement a very narrow interpretation, making it imperative for any party wishing to be added to provide a plan of care.
[28] And lastly, as to whether or not the child has a legal interest on the basis that an order for access can be made, the court has the power to make such an order of its own right without the need of adding J.K. as a party.
[29] As well, Ms. Mikalski quoted Section 50 of the Child and Family Services Act, and submitted that any other person requires a narrow interpretation, and a sibling should be added in the most unusual circumstances.
Analysis and Conclusion
[30] In the case of The Children’s Aid Society of London and Middlesex v H.(S.) (supra), 2002 46218 (ON SC), Justice Campbell clearly set out the four criteria that a party must meet in order to be added to a proceeding. They are as follows:
(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.
[31] A fifth criteria was whether a party has a legal interest in the proceedings. Justice Campbell defined legal interest as set out in Black’s Law Dictionary as “[a]n interest recognized by law, such as legal title.” Justice Campbell went on to say that “in child protection proceedings, an interest recognized by the law occurs when a court has the opportunity to make an order for or against a person in relation to the child.”
[32] In the case of the Children’s Society of Hamilton-Wentworth v. K.C. and T.M., Justice McLaren rightly noted that:
“the tests referred to in CAS of London and Middlesex v. H.(S.) required all four criteria. This simply means that if the moving party does not meet any one of the five criteria, that the party will not be added.”
[33] “Best interests of the child” is defined under Section 37 (3) of the Child and Family Services Act, and they are delineated as follows:
Best interests of child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of the family.
The child’s relationship and emotional ties to a parent, sibling, relative, other member of the child’s extended family or members of the child’s community.
The importance of continuity in the child’s care and the possible effects on the child of disruption of that continuity.
The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstances. R.S.O. 1990, c.C. 11, s 37 (3); 2006, c. 5, s. 6 (3).
[34] In applying the facts of this case to that definition, it is not disputed that the first four considerations for the purposes of this motion, are not an essential consideration for the court.
[35] With respect to the sixth consideration, it is undisputed that J.K. has seen A.J.-K. on five separate visits during the three years that he has been in care. It is also undisputed that between September 2012 and April of 2014, she made no effort to see him. And although as set out in the affidavit of Linda Feldman of the Office of the Children’s Lawyer that “J.K. was unaware as to when A.J.-K. left his mother’s care and was placed in foster care”, it simply underscores her complete lack of interest in making enquiries as to where he might be placed.
[36] It is certainly inconsistent with J.K.’s position that she is truly interested in establishing and developing a positive relationship with her three-year-old brother.
[37] Moreover, although J.K.’s access to A.J.-K. was at the discretion of the maternal grandmother, nevertheless she was told by Ms. MacKenzie that she was free to visit him at any time.
[38] Once again, her efforts at best were minimal, and I find do not demonstrate any motivation on the part of J.K. to develop a sibling relationship with A.J.-K.
[39] Therefore, as the facts present themselves, I find that J.K. has no meaningful relationship with her brother, other than the biological tie.
[40] Accordingly, I find it is not in A.J.-K.’s best interests to add J.K. as a party to these proceedings.
[41] Even though J.K. has not met one of the five criteria, I will briefly consider the other four criteria within the context of the evidence.
[42] On the issue of whether adding J.K. would unduly delay the proceeding, given the absence of any beneficial relationship between A.J.-K. and J.K., I agree with Ms. Mikalski’s submissions that Ms. Sullivan would then be entitled to access to the materials, which would require a great deal of time for review. I find that would significantly delay the proceeding and the ultimate resolution. And ultimately it would deprive the child of the opportunity of achieving permanent stability as soon as possible.
[43] As for whether adding J.K. as a party to the proceeding is necessary in order to assist the court in determining the issues at trial, the issue of access can easily be raised by L.K., who is a party to the proceeding and is the biological mother of both J.K. and A.J.-K.
[44] As for whether a plan of care is a necessary criteria to meet when a court is considering adding a child as party to the proceeding, even if that requirement is not met in these particular circumstances, J.K.’s evidence, I find would fall significantly short of establishing a regular pattern of visits with her younger brother, thereby reflecting a developing relationship.
[45] And lastly, although J.K. may technically have a legal interest, any access order would not have any concerning effect on J.K. that would compel further exploration by adding her as a party.
[46] Accordingly, the motion is dismissed.
Mazza, J.
Date: November 18, 2015