COURT FILE NO.: FSA-256-18
DATE: 2018-10-29
(i) WARNING
(a) This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
(b) 87(8) Prohibition re identifying child — 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.
(c) (9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of the Regional Municipality of Waterloo
Ms. Cheryl Buehler, for the Respondent, Children’s Aid Society of the Regional Municipality of Waterloo
Applicant
(Respondent on Appeal)
- and -
M.T.
Ms. Anna Towlson, for the Appellant, M.T.
Respondent (Appellant on Appeal)
C.T.C. & A.L.
Respondents (Not Appearing)
T.N.
(Non-Party on Appeal)
Mr. Patrick Brohman, Counsel for the Non-Party on Appeal, T.N.
HEARD: September 14, 2018
JUDGMENT
THE HONOURABLE MADAM JUSTICE L. MADSEN
[1] The maternal grandmother, M.T., appeals the Order of Justice B. Oldham of the Ontario Court of Justice granting T.N., the foster parent, expanded rights of participation and disclosure in relation to a focused hearing on the issue of the maternal grandmother’s access to the child L.T., post Crown Wardship.
[2] For the reasons which follow, the appeal is dismissed.
BACKGROUND
[3] The proceedings in this matter involve a Status Review Application commenced by the Children’s Aid Society of the Region of Waterloo (the “CAS” or the “agency”). The Status Review was amended on October 7, 2015, requesting an Order that the child L.T. be made a Crown Ward without access. The maternal grandmother was added as a party by Order dated January 12, 2016.
[4] The child was born […], 2012 and is now six years old. She has been in the care of the foster parent, T.N., since November 3, 2015, shortly after the Status Review Application was commenced, almost three years ago.
[5] Both parents consented to an Order for Crown Wardship of L.T. and did not seek access. They entered into openness agreements with T.N. and did not participate in the Appeal.
[6] The foster parent and the maternal grandmother have been unable to agree on terms of openness.
[7] On September 6, 2017, the Court heard a Motion for Summary Judgment brought by the CAS. In her reasons for Judgment released November 14, 2017, Madam Justice Oldham granted the Society’s Motion that the child be made a Crown Ward and ordered a focused hearing on the issue of the maternal grandmother’s access to the child. In doing so she found that there was insufficient evidence regarding whether the access between the child and the maternal grandmother was meaningful and beneficial to the child (she found that access appeared meaningful and beneficial to the grandmother), and no evidence before her from the foster parent regarding whether access to the maternal grandmother would impair adoption.
[8] The foster parent then brought a Motion for expanded participation rights pursuant to section 39(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as am. (CFSA). That Motion was heard March 22, 2018. On April 4, 2018 the Court granted T.N. expanded participation rights including the right to disclosure of the CAS file (except the kinship assessment), and the right to attend trial, cross examine witnesses, present evidence, make submissions, and to participate in argument about the admissibility of evidence. It is that Order which is under appeal.
THE PARTIES’ POSITIONS
Maternal Grandmother, MT.
[9] On appeal, the maternal grandmother argued that the Court below erred in numerous ways including the following:
That the learned Motions Judge erred in granting the foster parent the rights of a party to the proceeding, including the right to disclosure of the CAS file (without the kinship assessment) and participation rights analogous to those of a party;
That the learned Motions Judge erred in finding that the maternal grandmother was seeking access “more akin to that of a parent than a grandmother”;
That the learned Motions Judge erred in finding that the CAS’ and foster parent’s positions on access may not be aligned on the issue of openness;
That the learned Motions Judge erred in finding that the foster parent has a legal interest in the outcome of the focused hearing on access;
That the learned Motions Judge erred in finding that the expanded rights granted to the foster parent would not delay or prolong the hearing in any significant way;
That the learned Motions Judge erred in finding that the right of the foster parent to disclosure of the CAS file outweighed the family’s privacy interest in the CAS records;
That the learned Motions Judge erred in finding that disclosure of the CAS file was appropriate and necessary to the determination of the question of the grandmother’s access;
That the learned Motions Judge failed to recognize that the caselaw only supports expanded participation rights where the position of the foster parent is not aligned with that of the CAS; and
That the learned Motions Judge erred in finding that there was no procedural unfairness to the maternal grandmother given that the positions of the agency and the grandmother were “completely aligned.”
[10] During the hearing of the appeal, counsel for the maternal grandmother focused her argument on two main points: the alleged error in finding that the foster parent had a legal interest in the matter; and her argument that the probative value of the disclosure ordered does not outweigh the maternal grandmother’s right to privacy. Counsel also advanced a “floodgates” argument – that the decision below, if not overturned, would open the door to foster parents to deliberately seek a two-stage hearing, so that at the access stage the foster parent would effectively have all of the rights of a party.
Foster Parent, T.N.
[11] The foster parent argued that the Court below did not err in granting her rights of disclosure and participation, emphasizing that the decision was discretionary and therefore entitled to significant deference on appeal. She argued that the Court gave sufficient weight to all relevant considerations and stressed that a discretionary Order ought not to be lightly interfered with.
The Children’s Aid Society
[12] The Children’s Aid Society took no position on the appeal, stating that whether the appeal is granted or not, the agency is confident that the Court will have the evidence required to make the determination on access. At the same time, the CAS stated that it has no objection to both the maternal grandmother and the foster parent having full rights of participation as they will both have to live with the outcome of the access determination for many years to come.
LAW AND ANALYSIS
Standard of Review
[13] In Housen v. Nikolaisen, 2002 SCC 33, the Supreme Court of Canada set out different standards of review, depending on the nature of the issue under appeal, whether a question of law, a finding of fact, or a question of mixed fact and law.
[14] In Children's Aid Society of the Niagara Region v. C.(J.), 2007 CanLII 8919 (ON SCDC), 2007 CarswellOnt 1680 (“Niagara v. J.C.”) at para. 5, Justice Aitken for the Divisional Court set out the standard of review to be applied in the child protection context as follows:
... In regard to a pure question of law, the standard of review is correctness. For findings of fact, the standard of review is palpable and overriding error. Where the trial judge draws inferences from facts, the standard of review first is whether the trial judge made any palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inferences from those factual findings (the second part of the test is not simply whether the inferences could reasonably be drawn from the factual findings). In regard to a mixed question of law and fact, if it involves the trial judge's interpretation of the evidence as a whole, the standard is palpable and overriding error. If it involves the trial judge's interpretation of a legal standard or its application, the error may amount to an error in law and be subject to the standard of correctness.
[15] An appeal Court must intervene when there is a material error, a serious misapprehension of evidence, or an error of law. However, it may not overturn a decision “simply because it would have made a different decision or balanced the factors differently.” See Niagara v C.(J.), supra at para. 6.
[16] As recently noted by Justice McSweeney in Children’s Aid Society of Peel Region v. M.H. and S.H, 2018 ONSC 1589, 2018 CarswellOnt 4304 at para. 43, “courts have emphasized that deference is particularly compelling in child protection cases.” See for example Children’s Aid Society of Ottawa v. N.(S.), 2012 ONCA 590 at para. 19, where Justice Gillese stated "[t]his court owes deference to factual determinations, a consideration that is particularly compelling in child protection proceedings."
[17] See also D.(D.) v. Children’s Aid Society of Toronto, 2015 ONCA 903 at paras. 27 – 30 where Justice Pardu of the Ontario Court of Appeal stated that an Appeal Court is not entitled to intervene simply because it would have made a different decision or balanced the factors differently. Further, see Children’s Aid Society of Toronto v. L.P., 2012 ONCA 890 where Justice Epstein of the Ontario Court of Appeal stated at paragraph 16, “… the degree of deference owed to the Trial Judge is particularly high in child protection proceedings.”
Discretionary Decisions
[18] The test for appellate review of the exercise of judicial discretion is whether the Judge at first instance gave sufficient weight to all relevant considerations. See Reza v. Canada, 1994 CanLII 91 (SCC), [1994] 2 S.C.R 394 (S.C.C.) at para 24. Similarly, in R. v. Regan, 2002 SCC 12, 2002 S.C.C. 12 at para. 117, Justice LeBel for the Supreme Court majority described the standard of review of a discretionary decision as follows: “…where a trial Judge exercises her or his discretion, that decision cannot be replaced simply because the appellate court has a different assessment of the facts.”
[19] Where a decision on the part of the Court is discretionary, such a decision must not be lightly interfered with. An appellate Court will be justified in intervening only if the Judge below has misdirected himself or herself or the decision is so clearly wrong as to amount to an injustice. See Wong v. Lee 2002 CarswellOnt 742 at para. 30.
[20] In Wong v. Lee, supra, at 26, Justice Borins cited Justice Aharon Barak on the subject of judicial discretion as follows:
…discretion is the power given to a person with authority to choose between two or more alternatives, each of which is lawful… Discretion means the power to choose among different possible solutions… Discretion means the power to choose between two or more courses of action each of which is thought to be permissible…
Discretion assumes freedom to choose among lawful alternatives.
[21] Justice Borins continued as follows:
As Justice Barak pointed out, when we say that a judge has a discretion we mean that there is no legal rule that compels a judge to make a particular decision. Rather, if the judge considers relevant factors, it is accepted that different judges can reasonably interpret the factors in different ways and reach different but reasonable conclusions.
Wong v. Lee, supra at 46. [Emphasis added]
[22] A reversal of a discretionary decision will be appropriate only if the appellate Court makes the clear conclusion there has been a wrongful exercise of discretion and no weight or no sufficient weight has been given to relevant considerations. Wong v. Lee, supra at para. 28.
[23] In A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 (hereinafter. “A.M. v. Valoris”) at para. 21, the Ontario Court of Appeal confirmed in the child protection context that absent palpable and overriding error, or an error of law, or an unreasonable exercise of discretion, the decision of the Motions Judge should not be interfered with.
Relevant Statutory Provisions
[24] The statutory sections governing the issues in this matter were previously set out in section 39(3) of the Child and Family Services Act, cited supra and are identical in the now applicable section 79(3) of the Child, Youth, and Family Services Act, 2017, S.O. 2017, c. 14, Schedule 1 (CYFSA).
[25] Matters such as this case, commenced under Part III of the CFSA but not concluded on the day that the CYFSA came into force, are continued under the CYFSA. Section 13, O. Reg. 157/18.
[26] The relevant section of the CYFSA reads as follows:
79(3) RIGHT TO PARTICIPATE – 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. [emphasis added]
[27] The determination of whether expanded participation rights should be granted is a discretionary decision. The Court may or may not grant leave.
[28] In light of the allegation that the Court below effectively granted the foster parent all of the rights of a party, Rules 7(4) and 7(5) of the Family Law Rules, O. Reg. 114/99, as am. are also engaged on this appeal. Those Rules read as follows:
7(4) PARTIES IN CASES INVOLVING CHILDREN – In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child and Family Services Act, shall be named as a party, unless the court orders otherwise:
A case about custody of or access to a child.
A child protection case.
A secure treatment case.
7(5) PARTY ADDED BY A COURT ORDER – 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.
[Emphasis added]
[29] Again, the determination of whether a foster parent should or should not be added as a party is a discretionary decision. The Court may or may not add the foster parent as a party.
[30] In A.M. v. Valoris, cited supra, the Ontario Court of Appeal confirmed the discretionary nature of the Court’s determinations under former CFSA section 39(3) and Rule 7.4. While stating that the discretionary power should not be exercised lightly, it found that neither should the exercise of that discretion be circumscribed too narrowly. The Court confirmed that the paramount consideration is the child’s best interests. See paras. 20 and 35.
Considerations and Factors Set out in the Case Law
[31] It is clear from a review of the Judgment under appeal that the Court considered the factors that are applicable when determining whether to grant expanded participatory rights, that the Judge gave sufficient weight to those considerations, and that she reached a determination which is sound and reasonable in the context of this case.
[32] Two significant decisions assist this Court in determining the appropriate considerations on a request for expanded participation up to and including party status: Catholic Children’s Aid Society of Toronto v. S.(R.D.), 2008 CanLII 8607 (ON SC), 2008 CarswellOnt 1206, decided by Justice Czutrin [hereinafter “S.(R.D.)”]; and A.M. v. Valoris, cited above at paragraph 23.
[33] In S.(R.D.), Justice Czutrin considered an appeal by a foster parent who had been denied party status or in the alternative expanded rights of participation. In allowing the appeal in part, Justice Czutrin granted the foster parent expanded rights of participation including pre-trial disclosure, but did not grant party status. He stressed that the then-applicable CFSA specifically contemplates that a Court may grant foster parents the right to participate more fully, up to and including party status. See paras. 2 and 21. The same is true under the now applicable CYFSA. Justice Czutrin concluded that the foster parent should be able to lead any evidence that would help the Court meet its obligation to assess the Society’s plan and make a placement consistent with the child’s best interests.
[34] As in this case, in S.(R.D.), a protection finding had already been made. Justice Czutrin stated as follows at paragraph 14:
Once there is a finding in need of protection, the Court must make an Order consistent with the child’s best interests in accordance with section 37(3) of the CFSA [now section 74(3) of the CYFSA]. It must collect and consider all available, relevant evidence to make this determination. [emphasis added]
[35] Justice Czutrin stressed that the determination of whether a foster parent should be granted expanded rights of participation is to be determined on a case by case and contextual basis. He articulated the following factors which were endorsed by the Ontario Court of Appeal in A.M. v. Valoris, supra at paras. 25 and 26:
a. The age of the child and the timeline considerations under the legislation;
b. Whether a finding of protection has been made at the time of the request for participation;
c. Whether foster parents will be called to testify and whether their evidence will be challenged;
d. Whether those who had care of the child at the commencement of proceeding are presenting a plan;
e. The time of the continuing placement of the child;
f. The child’s contact with proposed caregivers;
g. Whether the application has been amended; and
h. Other factors which would clarify best interests.
[36] In A.M. v. Valoris, supra, the Motions Judge found that the foster parent should be added as a party, or in the alternative should have expanded rights of participation under section 39(3) of the CFSA. The Divisional Court reversed that decision. On further appeal, the Ontario Court of Appeal reinstated the decision of the Motions Judge that the foster parent should be added as a party. The Motions Judge had held that the foster parent was “in the best position to inform the Court on a Crown Wardship hearing as to what the specific needs are and what is in the best interests of this child.” See para. 9.
[37] In A.M. v. Valoris, the Ontario Court of Appeal found that both Rule 7(4) and (former) section 39(3) of the CFSA preserve the Court’s discretion to add a foster parent as a party to a child protection proceeding. The Court confirmed that “absent a palpable and overriding error, an error in law, or an unreasonable exercise of discretion” the decision of a Motions Court Judge should not be interfered with.
[38] At paragraph 22, the Ontario Court of Appeal summarized the following factors that have emerged for consideration where there is a request to add a party to a child protection proceeding, while also endorsing the list of factors set out by Justice Czutrin:
a. Whether the addition of the party is in the best interests of the child;
b. Whether the addition of the party will delay or prolong the proceeding;
c. Whether adding the party is necessary to determine the issues;
d. Whether the proposed party is capable of putting forward a plan that is in the child’s best interests; and
e. Whether the party proposed to be added has a legal interest in the proceeding.
[39] The Ontario Court of Appeal held that it is not necessary to satisfy all of the factors for the proposed party to be added and held that the question of delay and whether the proposed party has a legal interest are not determinative.
[40] The Court also cautioned against construing “legal interest” too narrowly, stating at para. 31:
The Divisional Court’s conclusion that the F-A mother has no legal interest in the proceedings, in our view, takes too narrow a view. In the circumstances of this case, while it is correct that no final Order could be made in favour of the F-A mother at this stage of the proceedings, depending on the outcome of the proceedings, any opportunity for her to adopt the child would be foreclosed. In that sense her legal interests are affected. The decision here however does not turn on the question of the existence, nature or extent of the F-A mother’s legal interest. As correctly pointed out by the motion judge, the protection and pursuit of the child’s best interests, rather than the rights of the F-A mother, are the central issue. [emphasis added]
[41] The recent decision of Justice Korpan in Children’s Aid Society of London and Middlesex v. A.L., 2018 ONSC 1682 confirms both the discretionary nature of any decision to grant expanded participation rights or party status to a foster parent, while also confirming that the stage of the proceedings is relevant to the approach that will be taken by the Court. Justice Korpan distinguished between initial applications and status review applications, noting that once it has been established that the child is in continuing need of protection, the Court must consider the least restrictive alternatives consistent with the child’s best interests. Justice Korpan applied the considerations set out in A.M. v. Valoris supra and in S.(R.D.) supra, concluding that while the foster parents in that case had cared for the child for nine months, it would be inappropriate to extend further participation rights or party status to the foster parents as this was an initial application where no protection finding had been made.
[42] In the case at bar, the Court below considered the factors set out by the Ontario Court of Appeal in A.M. v. Valoris supra, as well as the additional considerations set out by Justice Czutrin in R.(D.S.), supra. Specifically, the learned Justice found that:
a. The foster parent’s expanded participation was in the child’s best interests because it would assist the Court in determining the issues of access;
b. The child had at that time been in the care of the foster parent for 2.5 years, which at that time was half of her life;
c. As the person who had care of the child for 2.5 years leading up to the Motion, the foster parent was in the best position to put forward evidence about what is in the child’s best interests;
d. A finding in need of protection had been made;
e. While the foster mother would be a witness for the CAS, it was clear that her evidence would be challenged;
f. The biological parents would not be participating in the focused hearing on access as they consented to Crown Wardship and had entered into openness agreements;
g. The foster mother was prepared to adopt the child and had put forward a permanency plan; she thus had a legal interest in the outcome of the focused hearing;
h. The expanded rights would not delay or prolong the hearing in any significant way.
[43] The Court below emphasized that in this case, a protection finding had already been made and the child had already been found to be a Crown Ward. Reviewing cases addressing the stage at which a request for party status or expanded participation is brought, she found, correctly, that a less restrictive approach to the participation of a foster parent may be taken at later stages of a proceeding. She stated at para. 16:
The reference to “stage of proceedings” in the above cited cases does not mean that foster parents are to be added as parties automatically once there has been a finding in need of protection or an order for crown ward. They do, however, suggest that the role of the foster parent changes and their rights to expanded participation or party status may not be reserved for only the rarest of cases once those determinations have been made. A less restrictive approach should be applied to situations where the foster parent is seeking expanded participation or party status to address the issue of placement, or access once there has been a finding of protection or an order for crown ward.
[44] The Court below considered the issue of “alignment” of positions of the foster parent and the CAS, a concern raised by the maternal grandmother. While finding that the positions of the CAS and the foster parent “appear” to be aligned, she noted that the CAS position is that the grandmother should have no access, while the foster parent’s affidavit confirmed that she would be agreeable to an openness Order. In any event, the Court found, the foster parent could be more specific in terms of best interests of the child and how or why access would impair adoption in her home. She found that at this stage of the proceeding, “[w]hile the foster parent may not feel the need to participate in cases where the Society’s position is wholly aligned with them, that situation should not preclude them from participating, if their participation is otherwise in the best interests of the child. This Court notes that neither in S.(R.D.), supra or A.M. v. Valoris, supra is there the suggestion that where interests are similar or aligned would this factor be conclusive or override the other factors set out for consideration. Both cases stress the case-by-case and contextual nature of the analysis and that no one factor is determinative.
[45] The Court below emphasized, as was done in A.M., supra, at paras. 20 and 27 and S.(R.D.) supra at para. 14, that the overarching consideration with respect to expanded participation or a request for party status once a protection finding has been made is the best interests of the child. As Justice Czutrin stated at para 14 of R.(D.S.)., the Court at this stage must consider “all available, relevant evidence to make this determination.” The Motions Judge stated:
At this stage of the analysis, the court’s decision must be child centred. It is therefore important that the court have the best evidence available from a party fully informed in order to make a determination as to whether access is beneficial and meaningful and whether orders would impair the adoptability of a child. See para. 27.
[46] The maternal grandmother argues that it was an error for the Ontario Court of Justice to find that the foster parent has a “legal interest” in this matter. The Ontario Court of Appeal clearly stated in A.M. v. Valoris, supra that to regard the question of legal interest only as an issue of whether an Order could be made against or in favour of the foster parent is too narrow a formulation. The Court indicated that in a case such as this, while there may not technically be a “legal interest” in the sense that an Order could not be made in favour of or against the foster parent, the legal interests of the person seeking to participate may nevertheless be affected. The evidence is in this case is that the foster parent is the intended adoptive parent of this child. The Crown Wardship Order has been made. The foster parent is the person who will have to implement any access in favour of the maternal grandmother. In that broad sense her legal interests are affected. In any event, as set out by the Court of Appeal, it is the protection and pursuit of the child’s interests, rather than of the foster parent, that is the central issue.
[47] The maternal grandmother cited a number of cases in her materials which are distinguishable from the case at bar:
[48] In Children’s Aid Society of London and Middlesex v. W.(L.), 2014 ONSC 6588, a case regarding a request for disclosure by a foster parent, Justice Henderson stated that the theme in child protection cases is to restrict foster parent participation. However, the motion before Justice Henderson was brought in the context of an originating application and before any protection finding, rather than, as here, after a protection finding and after a Crown Wardship Order has been made. As seen above, the considerations that apply before a protection finding and after are not identical. While the Court also stated that there was no need for the disclosure as the positions of the foster parent and the Children’s Aid Society were “aligned”, in the case at bar, where the protection finding has been made and the Order for Crown Wardship granted, the issue becomes having all available and relevant evidence before the Court to make an Order consistent with the child’s best interests. See Justice Czutrin in S.(R.D.) supra at para. 14.
[49] In Windsor-Essex Children’s Aid Society v. D.L.H., 2015 ONCJ 310, Justice Tobin declined to add a foster parent as a party but did grant some rights of participation, in particular some disclosure and the ability to participate in upcoming settlement and trial management conferences. Justice Tobin stated: “In balancing all of the considerations, I am satisfied that the Court should hear from Ms. F. before deciding the basis for finding the child in need of protection and what disposition might be in the child’s best interests. This can be accomplished by allowing Ms. F. enhanced rights of participation.” See para. 28. This determination was made before any finding of protection. Rather than supporting the proposition advanced by the maternal grandmother on this appeal, this decision provides an excellent illustration that whether and to what extent participation rights will be granted is a discretionary determination, and that different judges will weigh the factors differently crafting degrees of participation appropriate to the context and circumstances of the case.
[50] In Children’s Aid Society of Metropolitan Toronto v. D.S. and F.S., 1991 CanLII 4537, Justice Nasmith referred to “role confusion” and declined to grant an Order adding the foster parents as parties. Confirming the principle that the timing of the request and the stage of the proceedings is relevant, he found that prior to a protection finding, foster parents have no basis to claim party status and their role is intended to be temporary.
[51] Finally, in G.(C.). v. Catholic Children’s Aid Society of Hamilton-Wentworth, 1998 CanLII 3391 (ON CA), 1998 CarswellOnt 2578, an Ontario Court of Appeal decision, the issue under consideration was distinguishable from the facts of this case. Children were placed with foster parents and became Crown Wards. The foster parents’ foster home was shut down. Rather than seek a review of that decision under the applicable legislation, the foster parents attempted to obtain custody through an application under the Children’s Law Reform Act. In that context, the Ontario Court of Appeal commented that foster parents are simply delegates of the Children’s Aid Society, whose rights are carefully circumscribed.
[52] Having carefully reviewed all of the materials submitted to the Court on this appeal, including the materials before Justice Oldham, her detailed decision, and the facta and caselaw provided counsel, this Court finds as follows:
a. The learned Justice demonstrated clearly that she was aware of the relevant factors and issues to consider as set out in the legislation and the applicable caselaw;
b. The learned Justice carefully and reasonably applied the factors and considerations applicable to the question of the foster parent’s expanded participation on the focussed hearing;
c. The learned Justice provided detailed, clear, and articulate reasons supporting why she exercised her discretion in the manner she did;
d. In her discretion the learned Justice reasonably concluded that the appropriate balance in this case was disclosure rights plus rights of expanded participation;
e. The learned Justice did not misdirect herself on the law or the evidence nor does her conclusion lead to an injustice;
f. If the learned Justice erred on the issue of whether the foster parent had a legal interest in the proceeding, the issue of legal interest is in any event not determinative. At a minimum, as the future adoptive parent of the child, the foster parent’s legal interests would be affected, in the manner contemplated in A.M. v. Valoris, supra at 31, in which the Ontario Court of Appeal cautioned against a too narrow an understanding of legal interest.
[53] Turning now to the claims in the Appellant’s Notice of Appeal which may not yet have been fully addressed:
The statement that the access sought by the maternal grandmother is “more akin to that of a parent and a grandmother” is a finding of fact entitled to deference and the standard of review is palpable and overriding error. In her Notice of Appeal, the maternal grandmother stated that she had made clear that she was seeking access once per month and the ability to take the child to a weekly extracurricular activity. This Court finds no error in the comment of the Motions Judge that this access sought is “more akin to that of a parent.” In any event, the statement had no bearing on the Court’s application of the relevant tests regarding expanded participation rights.
This Court finds no error in the finding that the positions of the CAS and of the foster parent “may not be aligned on the issue of openness”. The Court found on the evidence that the CAS did not provide a position on openness while the foster parent indicated that she would be agreeable to an openness agreement. In any event, as set out above, even if the positions of the agency and the foster parent are aligned, the governing cases do not support alignment being a determinative consideration against expanded participation rights. The cases support balancing a number of factors in the unique context of each case.
The learned Motions Judge did not err in finding that the expanded rights granted to the foster parent would not delay or prolong the hearing in any significant way. She was aware of delay as a factor for consideration. She accepted the evidence of the foster parent that her draft affidavit had already been prepared and was ready to be filed. While the production of the disclosure and review of same will require some time, and trial time will be slightly extended by virtue of the participation rights granted to the foster parent, the learned Justice found that overall any delay would be minimal. This was not an unreasonable conclusion.
The maternal grandmother alleges that the learned Motions Judge erred in finding that the right of the foster parent to disclosure of the CAS file outweighed the family’s privacy interest in the CAS records. On appeal, the maternal grandmother’s factum states, “Society records and files contain highly confidential information that should not be disclosed except in the most exceptional circumstances and with substantial controls and limits in place. The case at bar is not an exceptional case.” The Court below balanced the importance of having all relevant evidence that bears on the child’s best interests before the Court with the privacy concerns of the maternal grandmother through strictly limiting terms regarding the disclosure, as follows:
Disclosure of the Society file, with the exception of the Kin Assessment of M.T., is to be provided to T.N.’s counsel. Any disclosure provided to T.N. is subject to terms such that it cannot be copied (except for the purposes of trial), disclosed or disseminated in any way by counsel or by the foster parent. At the conclusion of these proceedings, any disclosure is to be destroyed.
This Court is satisfied that the Motions Judge reasonably balanced the privacy concern with respect to the material to be disclosed and crafted “substantial controls and limits.”
The conclusion of the Motions Judge that disclosure of the CAS file was appropriate and necessary to the determination of the question of the grandmother’s access was reasonable in all of the circumstances. At the time of the Motion, the child had resided with the foster parent for two and a half years. The Motions Judge quite reasonably found that the foster parent was in the best position to put forward evidence about what is in the child’s best interests, and found that she should be “able to do that from a position of knowledge and understanding of the Society’s file. Information about access visits involving the maternal grandmother will be important.”
The maternal grandmother alleged that because the position of the CAS and the foster parent were “completely aligned”, granting participatory rights would result in procedural unfairness that would amount to “ganging up” on her. As set out above, the learned Justice did not find that the positions were completely aligned. She stated that while the positions “appear to be aligned”, she had evidence from the foster parent about openness but not from the CAS. The learned Justice also specifically addressed the alleged procedural unfairness, stating: “I do not agree that it is procedurally unfair. The onus and the test for an access Order does not change. The inquiry is to be child centred and the more information available to determine the impact of an Order, positive or negative, on a child is procedurally proper.” This Court finds no error in the determination that extending participation rights would not result in procedural unfairness.
[54] Finally, as noted above, the maternal grandmother also made a “floodgates” argument, suggesting that if the Order below is not overturned, the case will stand as precedent allowing foster parents to ask for “bifurcated” hearings, and then to seek to become parties or be granted rights similar to those of a party, at the access stage. She submitted that it is a “dangerous” precedent to set.
[55] There is no floodgates concern here. Each case is dealt with in the context of its unique fact and circumstances. In this case, access is to become the subject of a focussed hearing because there was insufficient evidence on whether access was meaningful and beneficial to the child and on whether access would impede adoption. This is a narrow circumstance and not one which lends itself to strategizing by a party in the hopes of securing enhanced participatory rights.
CONCLUSION
[56] In all of the circumstances this Court can find no reversible error in the decision under appeal. The Court below exercised its discretion reasonably and with due regard to the legislation and the considerations set out in the case law.
[57] The appeal is hereby dismissed.
Madsen J.
Released: October 29, 2018
COURT FILE NO.: FSA-256-18
DATE: 2018-10-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of the Regional Municipality of Waterloo
Applicant
(Respondent on Appeal)
- and -
M.T.
Respondent (Appellant on Appeal)
C.T.C. & A.L.
Respondents (Not Appearing)
T.N.
(Non-Party on Appeal)
REASONS FOR JUDGMENT
The Honourable Madam Justice L. Madsen
Released: October 29, 2018