Court File and Parties
Court File No.: C1239/16-02
Date: April 13, 2018
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.L., J.G. and F.L.
Before: Korpan J.
Counsel: Ben Leschied for the Society Marnelle Dragila for A.L. J.G. not appearing Holly Watson for F.L. Julie Lee for foster parents entitled to notice
Heard: March 9, 2018
Endorsement
[1] The foster parents’ motion to be added as parties or, in the alternative, to be granted additional expanded participatory rights to serve and file an answer/plan of care if required to do so, to receive disclosure pursuant to the Family Law Rules, O. Reg. 114/99 (“FLR”) and to call evidence and cross-examine witnesses at the disposition stage of this protection application for society wardship of the nine month old child, is dismissed.
[2] Pursuant to s. 39(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”), the foster parents have expanded participatory rights because they have cared for the child continuously for the past nine months:
39(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.
[3] Section 57(4) of the CFSA obliges the court, before making an order for society or Crown wardship, to consider placement with a relative, neighbour or other member of the child’s community or extended family. Family must be considered ahead of non-family. Crown wardship, the permanent removal of a child from her family, must be seen as an option of last resort.
[4] As the Court of Appeal observed in L. (R.) v. Children's Aid Society of Niagara Region, 2002 41858 (ON CA), 2002 CarswellOnt 4262:
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.
38 … prior to the initial hearing foster parents are meant to provide temporary care for children pending their return to their family or transfer to a more permanent placement. They are not intended to provide a comparative basis for the determination of the child's best interests from the outset. A best interests comparison between the foster home and the original family at this stage would run contrary to the entire scheme of state intervention in cases where there is reason to believe that a child is in need of protection. …
39 It is also clear from reading the Act as a whole, including the specific provision contained in s. 57(4) referred to earlier, that consideration of the family may go beyond the natural parents and others who had charge of the child immediately before apprehension and may extend to relatives and other members of the children's community.
40 The approach on an initial hearing is different than when a status review hearing is held after a child has been declared subject to the supervision of the Society or has been made a society ward. As Osborne J.A. held in … Children's Aid Society of Peel (Region) v. W. (M.J.) (1995), 1995 593 (ON CA), 23 O.R. (3d) 174 (Ont. C.A.), at 189:
On a status review hearing under s. 65, once it is established that the child is in continued need of protection and court intervention continues to be necessary, the court is required to consider the least restrictive alternatives consistent with the child's best interests. This may or may not involve the potential for some form of familial care. I do not think that on as status review hearing, a plan proposed by "extended family" (s. 57(4)) is to be given a prima facie elevated status.
Values which the C.F.S.A. seeks to preserve through s. 57(3) and (4) come into play when the child is removed from the care of the person in charge of the child immediately before state intervention. It is at that point that relatives, neighbours, and extended family are given a sort of priority consideration. This is because these potential placements may be in a child's best interests because they tend to be less intrusive. When more permanent steps are in issue, as was the case here, once it is determined that the child is in continued need of protection and that the court intervention is required, the court is required to consider among other things, the least restrictive alternative (s. 65(3)(h)) consistent with the pervading principle of the child's best interests. That is not to say that a plan of care advanced by a relative, or extended family may not be the least restrictive alternative and be a plan consistent with the best interests if the child. Such a plan should, in my view, simply be considered with other viable options.
41 In this case, the appellants are known as "risk foster parents". As noted by the applications judge, this designation applies to foster parents who have expressed an interest in adopting a foster child who has been placed with them if that foster child is made a Crown ward. There is an inherent risk in such situations that the duration of foster parenting may be more than just temporary and that strong attachments would be formed. However, the special role that foster parents may end up playing in the children's lives by reason of these circumstances does not alter their status under the Act. The foster home is not intended to provide a comparative basis in the assessment of the plans of care, if any, that are presented by family members for consideration by the court at this stage of the proceedings. …
[5] Both r. 7(4) of the FLR and s. 39(3) of the CFSA preserve the court’s discretion to add a foster parent as a party to a child protection proceeding. This discretion should not be exercised lightly. While delay and legal interest are relevant they are not, by themselves, determinative. The overarching consideration is the child’s best interests: A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601, at para. 20.
[6] The criteria for adding parties in a child protection case is 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;
(iv) whether the proposed party is capable of putting forward a plan that is in the child’s best interests; and
(v) whether the person has a legal interest in the case - in the sense that an order can be made in favour of or against the person: A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, at paras 22 and 23.
[7] It is not necessary for all factors to favour the person seeking party status before the court can add him or her: A.M., at para. 24.
[8] In A.M., the Court of Appeal echoed Czutrin J.’s comments at paras. 20 and 21 of Catholic Children's Aid Society of Toronto v. S. (R.D.), 2008 8607 (ON SC), 2008 CarswellOnt 1206 (Ont. S.C.J.) and endorsed his list of additional relevant considerations when deciding whether to allow foster parents greater participatory rights:
20 For very good and appropriate reasons, foster parents' rights are limited prior to an order making the child a Crown ward. At the same time, even if the foster mother were not added as a party, s. 39(3) of the CFSA leaves open (and in fact contemplates) that the court may grant foster parents rights to participate more fully. There is certainly no absolute prohibition against doing so. The motions judge overemphasized the option of placing the child with his grandparents in the context [of] considering the foster parent's rights of participation at this stage. The motions judge should have also considered the impact on the child of the time that has passed in this case without resolution and the people who could best bring to light his best interests. The Act should be read and balanced as a whole.
21 I find that the Court must, on a case-by-case and contextual basis, consider whether to grant leave to allow foster parents greater rights of participation, up to and including party status. These considerations might include:
The age of the child and the time line considerations of the CFSA;
Whether there has been a finding of a need of protection at the time the request for participation is made;
Whether the foster parents will be called to testify and whether their evidence will be challenged;
Whether the persons or parents who had charge of the child at the time of commencement of the proceedings are presenting a plan;
The time of continuing placement of the child;
Whether there has been any contact with the proposed caregivers;
Whether the application has been amended; and
Such other considerations that suggest the foster parent's involvement would clarify the best interests of the child.
[9] In the case before me, I have considered the five relevant questions and the considerations listed by Czutrin J.
[10] The child is nine months old. She was apprehended at birth and has lived with the foster parents since she was three days old. The child is not represented by the Office of the Children’s Lawyer.
[11] This is a protection application for Society wardship for six months. The application has not been amended. Nine months have passed since this case began. No protection finding has been made. Neither parent seeks the return of the child to her/him.
[12] The biological father of the mother’s four older children, the child’s half-siblings, has custody of them pursuant to a court order and the mother has access to be supervised at his discretion. He was recently added as a party to seek custody of the child under s. 57.1 of the CFSA. The mother’s plan is for the biological father of the child’s siblings to have custody of the child so that she can be raised with her siblings. There has been a visit between the child and her siblings. There is no evidence of whether the child has visited with her siblings’ father.
[13] A positive kin assessment of the child’s great aunt and great uncle (who are not parties) was recently completed and the Society intends to bring a motion to place the child in their care. There have been two visits between the child and her great aunt and great uncle.
[14] The foster parents are dually approved, both to foster and to adopt children. Their position is that it is in the child’s best interests to be made a Crown ward for the purpose of adoption. They are committed to adopting the child and to providing her with a permanent home. They submit that party status to permit them to participate will only enhance the court’s ability to properly determine an order that is in the child’s best interests. The foster mother undertakes on her and her partner’s behalf to secure an assessment of the child’s attachment and emotional/bonding needs/status by an attachment specialist (to be identified) at their own expense which assessment would be made available at the hearing.
[15] There has been no decision made about whether the foster parents will be called to testify or whether their evidence, if called, will be challenged. The foster parents have counsel and have not asked to delay the trial. Their addition as parties would prolong the proceedings to the extent that they would call evidence and cross-examine witnesses.
[16] In A.M, the Court of Appeal considered whether the foster mother, in a status review application for Crown wardship without access, had a legal interest in the proceeding. The Court held that while it was correct that no final order could be made against or in favour of the foster mother at that stage in the proceedings, depending on the outcome of the proceedings any opportunity for her to adopt the child would be foreclosed and that in that sense, her legal interests were affected. This case is distinguishable from A.M. This proceeding is a protection application; there has been no finding that the child is in need of protection and the disposition sought is society wardship, not Crown wardship.
[17] The foster parents may be capable of putting forward a plan that is in the child's best interests but I conclude that the addition of the foster parents as parties would prolong the proceeding, is not necessary to determine the issues and that the foster parents do not have a legal interest in the case. Consequently, I do not find that it is in the best interests of the child to add the foster parents as parties nor is it necessary to grant them additional expanded participatory rights.
[18] This matter is on the trial list commencing June 18, 2018. The foster parents have their right to make submissions based on the evidence presented at the trial, including submissions against the order sought and that Crown wardship is the disposition that is in the child’s best interests. The trial judge can grant leave to permit the foster parents to testify if their evidence will assist the court in clarifying the child’s best interests or to take a greater role in the hearing at that time.
[19] For these reasons, the motion is dismissed.
“Justice D.M. Korpan”
Justice D.M. Korpan
Date: April 13, 2018