WARNING
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:
87 (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(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.
(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
COURT FILE NO.: FO-FC-306-18
DATE: 2019 08 29
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: The Children’s Aid Society of the Regional Municipality of Waterloo, Applicant
AND:
Y.U. (deceased), et al
BEFORE: The Honourable Madam Justice D. Piccoli
COUNSEL: Kimberly Putman, for the Applicant Y.U. (deceased) I.G., Not appearing and noted in default on July 10, 2018 Valeria Ruoso, for the Respondent E.L. Patrick Brohman, for R.M.
HEARD: July 30, 2019
ENDORSEMENT
[1] The Children’s Aid Society of the Regional Municipality of Waterloo (“the Society”) has brought a status review application with respect to the child, J.W.G., born […], 2018 (“the child”). R.M., the aunt of Y.U. (deceased), who is the mother of the subject child, seeks to be added as a party to these proceedings.
[2] I heard the motion on July 30, 2019 and reserved my decision.
[3] As at the date of hearing this motion, the matter had been outstanding 62 days.
Background
Facts
[4] The biological mother of the child is Y.U., who was born […], 1990.
[5] The biological father of the child is I.G., born […], 1987.
[6] E.L. is the paternal grandmother of the child.
[7] The child has a half sibling who is not subject to this application and was born […], 2014.
[8] The child was apprehended at birth from the mother (Y.U.), due to, among other reasons, the Society’s ongoing concerns with the mother’s ability to care for a newborn based on her cognitive deficits, lack of caregiving skills, lack of prenatal care and domestic violence against her by I.G.
[9] In addition, both parents were alleged to be involved in the sex trafficking trade and had ongoing contact, regardless of no contact orders, which led to breach and assault charges against I.G.
[10] In August 2018, Y.U. died.
[11] On October 23, 2018, Justice Rogers granted a temporary supervision order to E.L. On January 8, 2019, Justice Rogers granted a final supervision order to E.L.
[12] On April 4, 2019, Waterloo Regional Police arrested I.G. and charged him in connection to the murder of Y.U. I.G. was charged with one count of second- degree murder, one count of indignity to a body and one count of breach of probation. He is in jail awaiting trial.
[13] This matter is a status review application with a first return date of July 2, 2019 at 10:00 a.m. The Society in the application is seeking that the paternal grandmother, E.L., be granted sole custody of the child pursuant to section 102 of the Child Youth Family Services Act. It is also seeking that access to the father, I.G., be at the discretion of E.L. and that any proposed changes to custody and access are to be reported by E.L. to C.A.S. The Society is asking that the supervision order made January 8, 2019, be terminated.
R. M’s Position
[14] R.M. seeks access to the child.
[15] R.M.’s evidence is as follows:
(a) She has two adult children who are 25 and 27;
(b) She has no history with the Society;
(c) Because of the war in Congo, she went to a refugee camp in Uganda with her children, Y.U. and two of her sisters;
(d) Given that Y.U.’s mother passed away in the Congo, she raised Y.U. from the time she was 3 years of age;
(e) Because of physical harm, Y.U. never progressed past the mental intellectual age of a 12-year-old. R.M provides some evidence, namely a Manitoba health card listing Y.U. as one of her dependents, and an Individual Education Plan she signed for Y.U. in 2007-2008 in support of her position that she was responsible for Y.U. and Y.U. was one of her dependents;
(f) Y.U. only moved out of her home in 2014 when she was pregnant with her oldest child;
(g) Despite Y.U. moving out of R.M.’s home in 2014, they remained close and she took Y.U. to her pre-birth appointments and was present for the birth;
(h) She had a very close relationship with Y.U. until Y.U. became pregnant with her youngest child (the child who is the subject matter of these proceedings);
(i) She is de facto a grandmother of the child who is the subject matter of these proceedings;
(j) She attempted to put forward a plan for the oldest child but was unable to do so in the 2 weeks allotted by the Society;
(k) She was in contact with the Society in August 2018, regarding putting forward a plan and was given until September 10, 2018, to do so but was then advised on August 22, 2018, that the Society was not considering any alternate kinship plan for the child;
(l) She has lived in a home that she shares with J.W. since 2011;
(m) She has been in receipt of ODSP because of a workplace injury in 2015 but she is fully capable of caring for a child; and
(n) She is a certified PSW and supplements her income with part-time work as a PSW.
[16] It was not until March 1, 2019, with the retention of new counsel, that R.M. renewed her requests to have access to the child. It is unclear why there was a 7-month (August 2018 – March 2019) delay in renewing her request.
[17] There is no evidence before me as to why access between R.M. and the child did not take place nor even if the issue of access was fully explored. There was a meeting between R.M.’s lawyer and the Society which “did not get very far due to confidentiality restrictions of the Society.”
[18] It is R.M.’s position that it is in the child’s best interest to know the maternal side of the family. It is her belief that such knowledge will only come through her and her children (both of whom were present in Court). She supports E. L’s custody order but would like access to the child. She also indicates that she would be prepared to provide a further kinship plan for the child if the placement with E.L. breaks down. She has taken this position as she has no other information about the family.
[19] R.M.’s lawyer states that this is really a custody proceeding, and the best interest of the child prevails. He further states that the amendments to the CYFSA and this provision have not been tested and that the fact that R.M. is not putting forward a plan for custody does not affect her claim to be added as a party because she wants access and that there is a benefit to the child to know his maternal side of the family.
[20] R.M. advised that she could put forward an Answer and Plan of Care within 3 weeks of the hearing of the motion.
The Paternal Grandmother’s (“E.L.”) Position
[21] E.L. has provided stability and consistency for the child since birth.
[22] Y.U. consented to the child being placed in her care within 2 weeks of his birth. Y.U. signed documents confirming this.
[23] E.L. has been cooperative, has worked well with the Society and has a strong bond with the child.
[24] R.M. has no relationship with the child.
[25] E.L. has no knowledge of the closeness of the relationship between R.M. and Y.U.
[26] Y.U. never mentioned R.M. to her (note it is not clear from the evidence before me how much contact Y.U. had with the paternal grandmother and the substance of the contact).
[27] E.L. is concerned about R.M.’s feelings towards E.L. and her family because of the outstanding charges against her son I.G.
[28] E.L. is open to meeting with R.M. with the assistance of the Society.
[29] R.M. does not meet the 5-part test under Rule 7 of the Family Law Rules.
The Society’s Position
[30] In oral submissions, the Society advised that the Society and E.L. would have settled the matter that day but for this motion. The Society has indicated that it will not be amending its pleading. The Society has indicated that adding the maternal aunt would delay matters by five or six months.
[31] Delay is a significant factor given that this is a Status Review Application and R. M is not putting forward a plan for custody - the matter could have been resolved on July 30, 2019, but for this motion.
[32] The Society believes R.M. is on a fact -finding mission but could not make submissions given confidentiality.
[33] There is no relationship between the child and R.M.
[34] The test is the best interests of the child and the Society will not be entertaining a change of placement.
The Law
[35] The Court has to consider the statutory definition of who are parties as the starting point in its approach. R.M. does not meet the statutory definition of a person entitled to participate in these proceeding pursuant to section 79(3) of the CYFSA as she has not “cared for the child continuously during the six months immediately before the hearing.”
[36] Anyone who does not meet the statutory definition should have a good, cogent and practical reason for seeking status.
[37] All parties agree that the test for adding a party is as set out in Justice Campbell’s decision Children’s Aid Society of London & Middlesex v. H.(S)., 2002 46218 (ON SC), 2002 CarswellOnt 4048. The first four parts of that test are found at paragraph 22 of that decision, namely:
Whether the addition of the party is in the best interest of the child,
Whether the addition of the party will delay or prolong the proceedings unduly,
Whether the addition of the party is necessary to determine the issues, and
Whether the additional party can put forward a plan that is in the best interests of the child.
[38] A fifth criteria is a set out in para 29 of that decision. Does the party have a legal interest in the proceedings?
[39] It is not necessary that all the factors of the 5-part test be satisfied to add the person as a party (See: Children’s Aid Society of Algoma v. A.D., 2019 ONCJ 485; Children’s Aid Society of Toronto v. E.(D)., 2016 ONCJ 390, 2016 CarswellOnt 10418).
[40] Counsel for both the Society and E.L. indicate that the only part of the test that R.M. has met is that she has a legal interest in the proceedings.
[41] None of the lawyers were able to provide any case law where this provision has been tested.
Application of the Law to the Facts
[42] It is unclear why R.M.’s request for access has not been answered. E.L.’s states that “if she wishes to get to know me, my family and [J.W.G.], I am open to meeting with her with the assistance of the Society.” The Court wonders why despite the passage of time and R.M.’s clear interest in having a relationship with the child that this has not happened.
[43] The best interests of this child are to be determined by taking into consideration the factors enumerated in s. 74(3) of the CFSYA.
[44] It is rare to add someone as a party to a proceeding under the CYFSA if that person is seeking access only. In other words, R.M. is not putting forward a plan that includes the child being placed in her care and custody. In a child protection case the child’s best interests are served by a careful examination of the best long-term plan for him. Adding a person as a party at this stage in the proceeding where her plan does not include custody does not promote permanency or an expeditious resolution. R.M. has no prior or ongoing relationship with the child. Despite her stated relationship to Y.U, Y.U chose to entrust the child to E.L. Adding R.M. as a party at this point would delay the proceeding by 5-6 months. Given the young age of this child, he requires permanency and stability. E.L. offers the child permanency. R.M. is offering an access relationship with the child. It is therefore not possible to conclude that adding R.M. as a party is in the child’s best interests. Had there been a relationship between the child and R.M. or had R.M. put forward her position expeditiously or had her proposed plan been for custody, I may have reached a different conclusion.
[45] R.M. can seek access to the child under the CLRA in the Unified Family Court. I encourage E.L. to have discussions with R.M. regarding access to avoid further litigation.
Conclusion
[46] R.M.’s motion is dismissed. The Society is to finalize its plan regarding the custody order. The dismissal of this motion is specifically on the basis that the final custody order will be entered into and is without prejudice to any subsequent access claim by R.M.
D. Piccoli J
Released: August 29, 2019
COURT FILE NO.: FO-FC-306-18
DATE: 2019 08 29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Children’s Aid Society of the Regional Municipality of Waterloo
Applicant
and –
Y.U. (deceased), et al
Respondents
ENDORSEMENT
D. Piccoli J
Released: August 29, 2019