ONTARIO
SUPERIOR COURT OF JUSTICE
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
COURT FILE NO.: C-2072/11
DATE: 2015-11-26
BETWEEN:
Children’s Aid Society of Hamilton
John Bland for the Applicant
Applicant
- and -
K.M., R.C., A.C., and R.C.
James Orme for K.M.
Gary Livesey for R.C.
A.C. and R.C. self-represented
James Mountford for C.C.¹ and C.C.²
Respondents
Susan Sullivan for G.C.
HEARD: November 10, 2015
The Honourable Mr. Justice R. J. Mazza
[1] This is a motion brought by several parties to be added to this proceeding. They are C.C.¹ and C.C.² and G.C.
[2] The Society, along with K.M. and A.C. and R.C., are opposed to this motion.
[3] C.C.¹ is the paternal aunt of the child, K.-J.D. C.C.² is the paternal grandmother and G.C. is the paternal uncle.
Background
[4] Borrowing from the Society’s factum, the undisputed facts are as follows:
The child is K.-J.D., born […], 2011, currently three years old (“the child”). The child was apprehended from her custodial parents on July 17, 2015, and she is currently in the care of the paternal grandmother and paternal uncle subject to Society supervision.
The mother is K.M., born […], 1984, currently 31 years old (“the mother”). The existing order provides that she is not to have access with K.-J.D.
The father is R.C., born June […], 1978, currently 37 years old (“the father”). The existing order grants him access with K.-J.D.
K.-J.D. was initially apprehended at birth due to serious concerns regarding the mother’s parenting capacity and her use of physical force on her first child, A. There were also ongoing and serious concerns regarding her mental health and cognitive abilities.
A Parenting Capacity Assessment, dated March 15, 2013, was completed on both parents by Dr. Milton Blake. The Assessment recommended that K.-J.D. be made a Ward of the Crown.
The paternal aunt and uncle, A.C. and R.C., presented a plan for K.-J.D. and a Custody Order was granted on April 23, 2014. The order included specified access for the father and no access for the mother. The child had been residing with the paternal aunt and uncle, A.C. and R.C., since June 11, 2014, until June 28, 2015.
On June 28, 2015, A.C. and R.C. brought the child to the paternal grandmother’s home and stated that she either took the child or they would be placing the child back in foster care the next day. All of K.-J.D.’s personal belongings and her health card were brought to the maternal grandmother’s home by R.C. on June 28, 2015.
On June 29, 2015, A.C. contacted Society worker, Sheila Evans, and stated that she and R.C. were no longer in a position to present a place of permanence for the child and wanted a paternal aunt in Edmonton to adopt her.
On July 22, 2015, the Society commenced a Protection Application seeking an Order making the child a Crown ward without access. At that time the paternal grandmother and paternal uncle stated they could provide a place of safety for K.-J.D. temporarily, but they could not present a permanent plan for the child. The Society was also concerned that A.C. and R.C. were no longer willing to work cooperatively with the Society or members of the paternal family to ensure that the child’s best interests were being served. The Honourable Justice Chappel granted a temporary order placing the child in the care of the paternal grandmother and paternal uncle subject to Society supervision, with access to the father and the custodial parents at the discretion of the Society, and no access to the mother.
On August 21, 2015, A.C. and R.C. filed an Answer and Plan of Care seeking the return of K.-J.D. to their care.
On September 21, 2015, the Honourable Justice Chappel made an Order providing that any motions regarding the party status shall be brought no later than October 9, 2015.
On June 28, 2015, A.C. and R.C. brought K.-J.D. and most of her belongings to the home of the paternal grandmother and G.C. [a paternal uncle]. The Society learned of this change in placement from G.C. on June 30, 2015. The worker subsequently met with the paternal grandmother and G.C. who said that they would be willing to care for K.-J.D. on a temporary basis but that they could not put forward a permanent plan.
K.-J.D.’s placement with the paternal grandmother and G.C. is going well and no concerns have been reported. The paternal grandmother and G.C. support the paternal aunt, C.C.¹’s, plan for the child and they are willing to continue caring for K.-J.D. until she can be moved to Alberta. In the meantime, their home has been provisionally approved as a kin foster home.
On July 15, 2015, paternal aunt C.C.¹ expressed an interest in putting forward a plan to adopt K.-J.D. with her partner, C.G. C.C.¹ claimed that she and C.G. had many appropriate supports in place to care for a child and that she worked part-time while C.G. worked full-time. C.C.¹ was asked to provide the Society with various documentation so that arrangements could be made for a kinship assessment to be completed.
The Society has been in contact with the Edmonton Region Child and Family Services (“ERCFS”) office regarding the completion of a formal kinship assessment on C.C.¹ and C.G. The Society was advised that an Environmental Safety Assessment would be completed, in addition to a Home Assessment Report. To date on the Environmental Safety Assessment has been completed. On October 6, 2015, the Society was advised that ERFCS could approve the child’s placement with C.C.¹ and C.G. and monitor the placement while a more in-depth Home Assessment Report was completed. At this time, the Home Assessment Report remains incomplete.
Submissions by Mr. Mountford
[5] Mr. Mountford on behalf of C.C.², the paternal grandmother, and C.C.¹, the paternal aunt, submitted that the child is currently residing with C.C.² and the paternal uncle, G.C.
[6] C.C.¹ resides in Alberta with her partner C.G., both of whom wish to put forth a plan of care, which Mr. Mountford further submitted, is in conjunction with C.C.² and G.C.
[7] Mr. Mountford explained that although C.C.² and G.C. are caring for the child, the intention of C.C.¹ and C.G., along with C.C.² and G.C., is for the four adults and the child to travel to Alberta to the home of C.C.¹ and C.G. to facilitate transition of the child from her current placement to the care of C.C.¹ and C.G.
[8] Mr. Mountford further submitted that because the child is currently in the care of C.C.² and G.C., who are residing in this jurisdiction and who are part of the submitted plan of care, it is necessary for them to be added as parties, particularly since the plan of care is a family plan involving the four adults.
[9] However, Mr. Mountford also recognized the logic of the court’s consideration of adding only C.C.¹ as a party because she and C.G. are currently being assessed as potential caregivers.
[10] Mr. Mountford is also acting as agent for Mr. Livesey, who represents the father, R.C., who is in favour of and in support of the position taken by Mr. Mountford on behalf of C.C.¹ and C.C.². As well, Mr. Mountford is agent for Ms. Sullivan, who filed material on behalf of G.C., who also wishes to be added as a party.
[11] Turning to the tests set out in the Children’s Aid Society of London and Middlesex v. H.(S.) https://www.canlii.org/en/on/onsc/doc/2002/2002canlii46218/2002canlii46218.html case, Mr. Mountford first submitted that it is clearly in the child’s best interests to add C.C.¹ and C.C.² as individuals to the proceeding, given that at least one of them is being considered as a potential caregiver.
[12] Second, it will not delay the proceedings since the Society now has all the information necessary for it to examine the viability of this plan of care, which includes medical and daycare services and school arrangements, as well as other necessary requirements to address the child’s needs, including the proposal of a gradual transition from the care of C.C.² and G.C. to C.C.¹ and C.G.
[13] In that regard, the only step yet to be completed, Mr. Mountford submitted, is the home study of C.C.¹ and C.G., a process which he submitted has already begun.
[14] As to whether C.C.¹ and C.C.² and G.C. should be added as parties to the proceeding in order for the court to determine the issues, Mr. Mountford submitted that given that the main issue at trial will be the appropriate placement of the child, and since the Society seems to be moving away from the kin assessment pertaining to C.C.¹ and C.G. and are reconsidering returning the child to the care of A.C. and R.C., this suggests that the Society is uncertain as to its position. Therefore it is not unlikely that the Society will adequately present his clients’ position at trial.
[15] On the other hand, if the court chooses not to add them as parties to the proceeding, they will be deprived of the opportunity of putting forth their objection to the Society’s return of the child to the care of A.C. and R.C.
[16] Furthermore, given that it appears Family Services supports A.C. and R.C. and the kin assessor supports C.C.¹ and C.G., this conflict is best resolved if the court permits their full participation at trial.
[17] Mr. Mountford goes on to say that the evidence of his clients is particularly crucial in view of the fact that it is unrefuted that A.C. and R.C. have referred to the child as “the devil incarnate”; of having a “pure evil side to her”; and a child who has “destroyed” their house.
Submissions by R.C.
[18] R.C., who did not file a factum, was allowed to make submissions and began by submitting that he and his spouse, A.C., regret returning the child to the care of the Society and ultimately the paternal grandmother and the paternal uncle.
[19] He submitted that while K.-J.D. was in their care, it was intense at times; and “things” became difficult. It may have been that A.C. and R.C. had been overwhelmed in their efforts to adjust to K.-J.D.’s behaviour.
[20] In R.C.’s 177-page affidavit, he outlines his concerns over C.C.¹ and C.G. becoming potential caregivers. Suffice it to say, there appears to be a great deal of conflict amongst the family members.
[21] As R.C. submitted, had he had the support of his mother and other family members regarding their efforts to care for K.-J.D., this matter would not be before the court today.
[22] He further indicated that he and his wife are still willing to have K.-J.D. returned to their care and fully cooperate with the Society. He reiterated that they had relinquished responsibility to K.-J.D., they were under a great deal of duress.
Submissions by Mr. Orme
[23] Mr. Orme, who is representing the maternal mother, K.M., submitted that the idea of C.C.¹ wishing to care for the child is really not the ultimate plan of the parties. In his opinion, he submitted that C.C.² and G.C. will, in fact, sell their property here and move to Alberta because they don’t have the confidence that C.C.¹ is able to care for the child. There is very little known about C.C.¹, Mr. Orme submitted.
[24] He further submitted that there is no need to add G.C. to the proceeding, first because he resides in the home, and second, there is no detail evidence which would indicate his involvement with the child.
[25] As well, Mr. Orme submitted that there is no logic in adding C.C.² or G.C. to the proceeding since they can adequately present their position through their testimony as witnesses.
[26] As well, the mother appears to be the one constant in the child’s life. Therefore, by uprooting the child to Alberta it would destroy the contact the child has with the mother. However, at the same time, Mr. Orme submitted and agreed that the current order does not permit the mother to have any access to the child.
Submissions by Mr. Bland
[27] Mr. Bland on behalf of the Society submitted that the Society is willing to reconsider returning K.-J.D. to the care of A.C. and R.C., given their expressed willingness to engage in mediation, or any other approved alternative dispute with all extended family members to discuss the ongoing needs and care of the child and to address any conflict.
[28] Mr. Bland submitted that the reason for the Society’s decision that A.C. and R.C. should resume care of K.-J.D., is the result of its skepticism over the viability of the plan presented by C.C.¹ and C.G. because they reside in Alberta.
[29] He submitted that moving K.-J.D. to Alberta would mean a significant adjustment for the child, and would mean distancing her from her extended family, which would seriously impact her existing relationships.
[30] He further submitted that C.C.¹ and C.G. have not had the opportunity of developing a relationship with K.-J.D., since they have only met her on two occasions. On the other hand, Mr. Bland submitted returning K.-J.D. to the care of A.C. and R.C. would place her in an environment in which she is familiar and comfortable.
Analysis and Conclusion
[31] In the case of Children’s Aid Society of London and Middlesex v H.(S.) (supra), https://www.canlii.org/en/on/onsc/doc/2002/2002canlii46218/2002canlii46218.html, 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.
[32] 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 related to the child.”
[33] In the case of the Children’s Aid 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.”
[34] “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 the 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, https://www.canlii.org/en/on/laws/stat/rso-1990-c-c11/latest/rso-1990-c-c11.html, s 37 (3); https://www.canlii.org/en/on/laws/astat/so-2006-c-5/latest/so-2006-c-5.html, s. 6(3).
[35] If the court is satisfied that any one of those considerations can be best addressed by adding a party to the proceeding, then the best interests test is met.
[36] In applying the facts of this case to that definition, I find that the key issue is placement of the child and that 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”, requires further scrutiny.
[37] Although the Society appears to be leaning towards returning the child to the care of A.C. and R.C., nevertheless it has taken it upon itself to conduct an extensive assessment of C.C.¹ and C.G. for the purpose of seeing the viability of that second plan.
[38] Given that C.C.¹ and C.G. are being seriously considered as a possible option with whom the child is to be placed, I am satisfied that it is in the child’s best interests to explore that matter further at trial. This can only be done by adding C.C.² as a party to the proceeding.
[39] Moreover, given that A.C. and R.C. are opposing the child being placed in C.C.¹’s care, I find that C.C.¹ should have the opportunity of challenging that position by presenting her own evidence. In other words, adding C.C.¹ is necessary to determine the issues.
[40] Moreover, C.C.¹ is a willing co-participant in the detailed plan of care which has been filed, and therefore satisfies the third criteria for adding a party to the proceeding.
[41] As for whether there should be any concern that adding C.C.¹ would cause undue delay, although some delay will be inevitable, I find that the important issue of where the child should be appropriately placed overrides any concern about there being any “undue” delay.
[42] Finally, given that C.C.¹ may be a potential permanent caregiver, and given that she may be affected by any court order, I am satisfied that she has a legal interest.
[43] With respect to the other two parties, in view of the fact that they are in complete support of C.C.¹’s plan of care, having been co-participants, and in view of the fact that they are in a transitional role only, I find it is not necessary to add them as parties to determine the issues. Given that they do not meet this criterion, it is not necessary for me to consider the remaining criteria.
[44] Accordingly, there will be an order adding C.C.¹ to the proceeding. Otherwise, the motion requesting the addition of C.C.² and G.C. is dismissed.
Mazza, J.
Released: November 26, 2015
COURT FILE NO.: C-2072/11
DATE: 2015-11-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
- and -
K.M., R.C., A.C. and R.C.
Respondents
REASONS FOR JUDGMENT
Mazza, J.
Released: November 26, 2015