Simcoe Muskoka Child, Youth and Family Services v. M.(B.), 2017 ONSC 535

COURT FILE NO.: FC-15-1383-00

DATE: 2017-01-23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SIMCOE MUSKOKA CHILD, YOUTH and FAMILY SERVICES, Applicant

AND:

B.M. and R.G., Respondents

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: J. Hustins, for the Applicant D. Zeldin, for the Respondent B.M. F. McFarlane, for the Respondent R.G. J. Winter, for the Moving Party A.M.

HEARD: January 16, 2017

ENDORSEMENT

Background

[1] This motion raises the question of when a grandparent may be added as a party in child protection proceedings.

[2] The child in issue in this matter is A.[^1] who is about 20 months old. A. was apprehended on October 14, 2015 from the care of B.M. who is the mother of the child. The reasons for the apprehension were lack of stable housing, anger and parenting issues.

[3] B.M. is the mother of A. and R.G. is the father. Each acknowledges that they are in no position to care for A. Their access is sporadic and has been tapering off recently.

[4] The child’s maternal grandmother and moving party in this matter is A.M. She is 41 years of age. When A. was apprehended, A.M. left her home in Edmonton, Alberta where she lived with her partner who worked in the oil industry. She came back to Ontario and since then has been exercising access to A. both in the company of her daughter and on her own.

[5] While the parents have lost interest in their daughter, A.M. has remained consistent in seeing A. and wishes to care for her on a permanent basis. The Society now requests crown wardship without access for the purposes of adoption. Both parents have filed an Answer and Plan of Care requesting that A. be placed in A.M.’s care.

[6] The Society conducted a kin assessment but rejected A.M.’s plan apparently because of concerns as to stable housing and an inability to manage her daughter. A.M. is presently undergoing a second kin assessment.

[7] A.M. now moves to be added as a party to this application pursuant to Rule 7 of the Family Law Rules.[^2] She acknowledges that the Society did not have to name her as a party to these proceedings under s. 39 of the Child and Family Services Act (the “CFSA”).[^3] Notwithstanding this, A.M.’s counsel submits that it is in the interest of justice that she be named as a party.

[8] Society counsel submits that naming A.M. as a party would result in unnecessary delay and that it is unnecessary to add A.M. as a party as the parents can argue the placement of A. with the paternal grandmother.

[9] For the reasons set out below I have determined that A.M. shall be named as a party respondent in this matter, and is entitled to file an Answer and Plan of Care and make independent and separate representations through her counsel at the upcoming summary judgment motion and trial.

Analysis

[10] The issue in this matter is whether it is in the interests of justice that A.M. be named as a party in this matter. This must be determined in light of the legislative provisions regarding the purposes of child protection proceedings, taking into account the best interests of the child in issue.

[11] Section 39(1) of the CFSA outlines the necessary parties to a proceeding:

The following are parties to a proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The child’s parent.

4. Where the child is an Indian or a native person, a representative chosen by the child’s band or native community.

[12] Mr. Winter on behalf of A.M. acknowledged that his client did not fit within the definition of a necessary party under the CFSA.

[13] The fact that A.M. is not a necessary party to this child protection proceeding does not end the matter. There is broad discretion in the court to add a party in the interests of justice: see Children’s Aid Society of Hamilton-Wentworth v. M. (A.), 1990 CanLII 3819 (ON SC), [1990] O.J. No. 1723 (U.F.C.). This is confirmed by rule 7(5) of the Family Law Rules which states that “the court may order that any person who should be named as a party shall be added as a party”.

[14] Mr. Winter argues that both the purposes of the CFSA as well as the best interests of the child as defined by the CFSA warrant that A.M. be named as a party. This is because his client both sees the child consistently and has a relationship with the child, and she also wishes to put forward her own plan of care for A. Mr. Winter notes that the CFSA provides that children’s services should be provided in a manner that ensures that the extended family remain involved in the proceedings: see s. 1(2), (3)(i) and (iv) of the Act. He also submits that the CFSA mandates that the best interests of the child requires the continued involvement of the child’s family if possible: see s. 37(3), (6), (7) and (11).

[15] In light of these provisions, grandparents have been joined as parties to child protection proceedings on a number of occasions: see M.(A.), supra., Lalonde v. the Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 5589 (ON SC), [1995] O.J. 119 (Gen. Div.) and Children’s Aid Society of London and Middlesex v. H.(S.), 2002 CanLII 46218 (ON SC), [2002] O.J. No. 4491 (S.C.J.).

[16] In deciding H.(S.), Campbell J. identified five factors to be taken into account as to whether a person should be added as a party to a child protection case:

1. Would this person’s addition as a party serve the child’s best interests;

2. Would this person’s addition as a party delay or prolong proceedings unduly;

3. Is this person’s addition as a party necessary to determine the issues;

4. Is this person capable of putting forward a plan that is the child’s best interests; and

5. Does this person have a legal interest in the case?

[17] Mr. Hustins on behalf of the Society argues that this motion fails based upon grounds 2 and 3 above.

[18] He first argues that the adding of the maternal grandmother as a party would result in delay to the case. He is correct that this case is now out of time under the timelines under s. 70 of the CFSA. The child was apprehended on October 14, 2015 and the child is under six years of age. The one year time limit set out in s. 70 expired in October of last year. The timelines only permit a six month extension if in the best interests of the child. The matter is scheduled for summary judgment on February 17, 2017 and under the timelines it is necessary that this matter be determined by then or almost immediately thereafter at trial.

[19] The issue of delay is a concerning one. There is a new kin assessment underway and Mr. Winter wishes disclosure of the file on the last kin assessment. Mr. Hustins argues that the request for disclosure as well as the new kin assessment may very well delay the summary judgment motion should A.M. be named as a party.

[20] The court is also cognizant of the mandatory effect of the s. 70 timelines. As noted by the Court of Appeal in M.(C.) v. Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612, [2015] O.J. No. 4705 (C.A.),

…it is imperative that judges, court administrators, counsel (particularly counsel for Children’s Aid Societies) and assessors take responsibility for ensuring adherence to statutorily required timelines.

[21] Considering the mandatory effect of the timelines, I do not find that the addition of the maternal grandmother as a party would necessarily serve to delay matters. I note firstly that the Court of Appeal has mandated that the timelines are binding upon both the courts and the parties to a proceeding. In light of this, and in light of the delays that have occurred in this case to date, it is unlikely that the court would delay either the hearing of the summary judgment motion or trial to accommodate A.M. and the presentation of her case in this matter. If A.M. wishes disclosure of the kin assessment, it is not an option to delay the matter in order to accommodate that request; it is highly unlikely that the summary judgment motion or trial would be delayed for this purpose considering the mandatory effect of the timelines.

[22] As well, it is apparent to me that it is incumbent upon the Society to make timely disclosure of the kin assessments in this matter. This is because both of the parents are advocating for the placement of A. with A.M. As part of the argument of the summary judgment motion, and in light of the issues raised by the responding parents, the Society is clearly obliged to document on a timely basis as to why the first kin assessment failed and as to the results of the second kin assessment: see Part II of Procedures, Practices and Standards of Service for Child Protection Cases[^4] governing the conduct of kin assessments as cited by counsel. The documentation to be produced for disclosure should therefore be available on a timely basis in response to Mr. Winter’s request for disclosure, and should have been produced whether or not A.M. is made a party.

[23] This brings us to the second ground raised by Mr. Hustins. Mr. Hustins argues that the joinder of the maternal grandmother as a party is unnecessary to determine the issues in question. This is because both the respondent mother and respondent father acknowledged that they are not in a position to care for the child but both advocate for the child to be placed with the maternal grandmother. Accordingly, there is no basis for naming A.M. as a party as both parents can adequately maintain that position at both the summary judgment motion and if necessary, trial.

[24] There is a substantial difference however in a third party advocating a parties’ position as opposed to that party making his or her own case. If A.M. is named as a party her counsel is then entitled to follow his own instincts and move his client’s position forward in a manner which is in the best interests of his client. He can choose his own witnesses and has his own right of cross examination. As well the parents may determine that it is in their best interests to settle and if they did so, it would not be incumbent upon them to continue advocating the case for placement with the maternal grandmother. There is also a risk upon A.M. relying on B.M. advocating her position as there was evidence that there was a previous falling out between mother and daughter.

[25] Mr. Winter’s client should therefore not be forced to trust that the case will be adequately argued by either or both of the parents. She wishes to put forward a plan which may very well be in the best interests of A. and it is no answer to this motion that someone else can do the job for her.

[26] According to G.A. Campbell J. in H.(S.), the only mandatory consideration must be whether the proposed party has a legal interest in the case: see para. 23 et sequent. The other factors are not mandatory for the addition of a party; they are for consideration only. The fact that a party does not meet one of the first four criteria is not fatal to them being added as a party.

[27] Regarding A.M.’s legal interest in the case, as in H(S.), I follow Campbell J.’s analysis by repeating that s. 57(3) of the CFSA requires the court to consider placement of a child with “a relative, neighbour or other member of the child’s community or extended family”. Therefore, the maternal grandmother is “a parent or some other person” within the meaning of s. 57(1) and she therefore has a legal interest in the case because the court must consider placement with her under the legislation: see H.(S.) at para. 25. The maternal grandmother has an interest in this case as she is a family member of this child and the CFSA mandates consideration of placement of a child in need of protection with extended family members as set out above.

[28] Accordingly, it is my determination that it is the interests of justice that the maternal grandmother be named as a respondent in this proceeding. She is related to the child and has an interest in this case. It is in the child’s best interests that all options be explored and the exploration of the placement with A.M. can be better assisted by her having her own counsel in this proceeding. This order also allows independent advocacy by the maternal grandmother as to the child’s best interests and there is little prejudice to this. As well Mr. Winter must be aware of the effects of the timelines and the fact that this case must be resolved within those timelines if possible; in my view the prejudice resulting from potential delay is outweighed by the best interests of A. in having her grandmother involved in this case.

[29] There will be an order to go adding A.M. as a respondent to this proceeding. She will have 15 days to file an Answer and Plan of Care and shall be subject to the timelines for the filing of material for the summary judgment motion as set out in the endorsement of Wood J. dated December 13, 2016.

McDERMOT J.

Date: January 23, 2017

[^1]: A. has the same initials as her grandmother; she will be referred to in this endorsement as “A.” [^2]: O. Reg. 114/99 [^3]: R.S.O. 1990, c. C.11 [^4]: O. Reg. 206/00