Children’s Aid Society of London and Middlesex v. A.D.K., 2016 ONSC 7785
COURT FILE NO.: C879/10-03
DATE: December 13, 2016
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant
AND:
A.D.K. and S.J.S., respondents
BEFORE: MITROW J.
COUNSEL: Ben Leschied for the Society
Bayly Guslits for E.C. and M.S., moving parties, and as agent for Stephanie Ouellette for A.D.K.
S.J.S. not appearing
HEARD: December 9, 2016
ENDORSEMENT
(a) Introduction
[1] The moving parties, M.S. (“aunt”) and E.C. (“uncle”), seek to be added as parties in this proceeding. This relief is opposed by the Society. For reasons that follow, the motion is granted.
(b) Discussion
[2] This proceeding is a protection application commenced by the applicant (“Society”) for Crown wardship of a child born in […] 2016; the child, now 6 months of age, was apprehended at birth and remains in the temporary care and custody of the Society pursuant to an order.
[3] The respondents are the father and mother of the child. The mother has filed an answer and plan of care which requests that the child be placed with the moving parties (the “kinship plan”).
[4] The aunt is the sister of the child’s father and she deposes that the father also supports the kinship plan.
[5] Society supervisor, Mary Dean, confirmed in her affidavit that the aunt and uncle continue to have access to the child on a weekly basis, with the visits being two hours in length at the Society’s office. The parents are able to visit the child during that time, with the aunt and uncle supervising their visits.
[6] The Society conducted a kinship assessment for the aunt and uncle. This assessment did not recommend placing the child with them. Although they were advised of that decision in October 2016 when the kinship assessment was completed, there does not appear to be any dispute that the aunt and uncle first received a copy of the kinship assessment when served with Ms. Dean’s affidavit sworn December 6, 2016, to which the assessment was appended as an exhibit.
[7] The Society’s refusal to approve the moving parties as a kin placement relates to historical concerns regarding child protection issues, and past and current drug use. The Society also was concerned about the aunt’s 2006 criminal record that included a conviction for armed robbery. The uncle has a dated criminal record for trafficking in a narcotic. The aunt has seven children; the five eldest children were from a different relationship; they were apprehended and eventually placed with the paternal grandmother, although one of those children now resides with the aunt and uncle.
[8] The aunt and uncle have two children together and those children are in their care.
[9] Ms. Dean also deposes that, although the child “currently presents as healthy and without issues,” that there is a concern that the child may be at “higher risk for complex needs as [the child] ages.”
[10] Subsections 39(1) to (3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 set out the persons who are parties:
Parties
39.(1) The following are parties to a proceeding under this Part:
The applicant.
The society having jurisdiction in the matter.
The child’s parent.
Where the child is an Indian or a native person, a representative chosen by the child’s band or native community.
Director to be added
(2) At any stage in a proceeding under this Part, the court shall add a Director as a party on his or her motion.
Right to participate
(3) Any person, including a foster parent, who has cared for the child continuously during the six months immediately before the hearing,
(a) is entitled to the same notice of the proceeding as a party;
(b) may be present at the hearing;
(c) may be represented by a solicitor; and
(d) may make submissions to the court,
but shall take no further part in the hearing without leave of the court.
[11] Pursuant to r. 7(5), any person who should be a party may be added, and it is this rule that governs the present motion:
7(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.
[12] In Children's Aid Society of London and Middlesex v. H.(S.), 2002 CanLII 46218 (ON SC), 2002 CarswellOnt 4048 (S.C.J.), G.A. Campbell J. summarized the principles to consider before adding a party in a child protection proceeding:
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.
[13] At para. 23 in H.(S.), there is reference to the decision of Marshman J. in Children's Aid Society of London and Middlesex v. P.(J.), 2000 CanLII 20732 (ON SC), 2000 CarswellOnt 718 (S.C.J.). Marshman J. was dealing with a motion to add foster parents as parties. In dismissing the motion, Marshman J. stated at para. 4 that a person should not be added as a party in protection proceedings “…unless that person has a legal interest in the proceedings, i.e an order can be made in their favour or against them.”
[14] In the present case, the Society concedes that the aunt and uncle have “a legal interest” in the proceeding.
[15] In examining the four criteria, or “principles,” set out in H.(S.), the Society placed emphasis on the issue of the necessity of adding the aunt and uncle.
[16] I find that adding the aunt and uncle is in the child’s best interests. The court has a statutory duty under s. 57(4), when dealing with disposition, to consider whether it is possible to place a child with a relative, neighbor or other member of the child’s community or extended family prior to making a more intrusive order.
[17] The Society argued that the kinship plan can be advanced by the mother. As the mother is participating in the proceeding, the Society submits that all evidence necessary to support the kinship plan can be called by the mother; in fact, that is the only plan being advanced by the parents. The Society submits that in these circumstances, it is not necessary to add the aunt and uncle as parties.
[18] While there is some merit to the Society’s position, I find that the moving parties have a legitimate concern that they should be free to instruct their own counsel to advance their case, and not have to be put in a position where their voices are dependent on instructions by the mother to her counsel. The moving parties in such circumstances cannot control the evidence to be presented or the witnesses to be called. Further, the “necessity” argument by the Society must be viewed through the lens of the relief sought – Crown wardship. This makes the stakes very high, and the moving parties are justified in their desire to be able to ensure that all relevant evidence is placed before the court.
[19] On the issue of potential delay, the order below sets the trial date and the combined trial management conference and settlement conference date. These potential dates were canvassed with counsel on the hearing of the motion. A settlement conference has been held, but the kinship assessment was not available at that time. The addition of the aunt and uncle as parties should not delay the trial of this case.
[20] In relation as to whether the aunt and uncle are capable of putting forth a plan in the child’s best interests, it is beyond the scope of this motion to delve into the merits in any substantive way. While, prima facie, the Society may have some legitimate concerns to oppose the kinship plan, the aunt and uncle continue to have their two children in their care, they have the support of both parents, they are exercising access and, in presenting their plan, they will argue that some of the Society’s concerns, including the criminal records and past protection concerns, are historical and not sufficient to prevent the child from being placed in their care. Accordingly, they do have a plan to present that they can take to trial.
[21] I order as follows:
E.C. and M.S. are added as respondents to this proceeding and the title of this proceeding is amended accordingly.
The Society shall serve its application, and the respondent mother shall serve her answer and plan of care, on the added parties by December 30, 2016, and service may be effected by regular mail addressed to counsel for the added parties.
E.C. and M.S. have until January 31, 2017 to serve and file their answer and plan of care.
This case is placed on the trial sittings for the sittings commencing June 12, 2017 peremptory on the added parties. The trial readiness court is May 30, 2017 at 9:30 a.m.
There shall be a combined trial management conference and settlement conference before me on May 25, 2017 at 2:30 p.m. Each party shall file a trial scheduling endorsement form and a settlement conference brief that includes a comprehensive offer to settle. Counsel shall cooperate to file a joint trial scheduling endorsement form.
[22] This is not a case for costs.
“Justice V. Mitrow”
Justice V. Mitrow
Date: December 13, 2016