Highland Shores Children's Aid Society v. T.S.

Court File No.: FC-97-FO000434-00 Date: October 4, 2019 Ontario Superior Court of Justice

In the Matter of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1

Between:

Highland Shores Children's Aid Society Applicant

– and –

T.S. Respondent

Counsel: Cynthia Law, for the Applicant No one appearing for the Respondent Father Sharon Leitch, for the Office of the Children’s Lawyer

Heard: August 13, 2019 with Written Submissions received August 19, 2019

Ruling on Motion

N. Tellier, J.

OVERVIEW AND PARTIES’ POSITIONS

[1] The Children’s Lawyer moves under Rule 7 of the Family Law Rules O. Reg. 439/07, s. 1. and section 79(3) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sched,1. (“CYFSA”) to add W.M. as a party to these proceedings. She is a family friend of the now deceased mother, who currently has S.S., born April 26, 2004, in her care, subject to Society supervision. This motion only concerns S.S. and her younger sister J.S., born December 27, 2005, who is currently in foster care elsewhere. These siblings are aged 15 and 13 respectively. There is a substantial child protection history involving other members of this family, which is not relevant to this motion. The father is not intending to advance a Plan of Care for either child.

[2] The Children’s Lawyer also seeks production of the kin assessments of W.M. at paragraph 2(e) of her notice of motion dated August 1, 2019. This relief was not sought in the original notice of motion dated July 16, 2019 wherein she first requested that W.M. be added as a party. The Society approved W.M.’s home as a kin placement for S.S. but it does not approve her home for a kin placement for J.S.. W.M. wishes to understand why and see if she can address any concerns revealed in the documents.

[3] The Society opposes this production on policy grounds. It expressed concern production might have a chilling effect on those who participate in these assessments and who do so on the understanding that the process will be kept confidential. This concern is expressed in the jurisprudence referred to below.

[4] W.M. wishes to have J.S. join her older sister S.S. in her home. She wishes to continue to provide foster care to both siblings and hopefully to adopt them. To that end she wishes to submit a Plan of Care and participate fully in these proceedings.

[5] The Society is content to give W.M. participatory rights in these proceeding; indeed, such participatory rights are codified in section 79(3) of the CYFSA. In submissions, it indicated it would provide some documentary disclosure to W. M. as part of those rights. The Society expressed the concern that granting W.M.’s full party status would delay the proceedings and noted the added right to appeal that flows from such status.

[6] The OCL concedes it could theoretically submit a Plan of Care on behalf of the two children, with a proposal to place the siblings together in W.M.’s care. But the OCL argues that W.M. ought to submit her proposed Plan of Care independently and have full party status to advance it through the balance of this Status Review. The OCL wishes to maintain clear boundaries in relation to its role as advocate for the children rather than aligning itself with W.M. by submitting a Plan of Care proposing her as the caregiver for these sisters. The OCL may take a different position than W.M. on issues that may arise in the future.

[7] For reasons that follow, the motion is allowed and W.M. is granted full party status. The kin assessments shall be produced in accordance with the procedure set out below.

FACTS

[8] Pursuant to the final order of Justice Deluzio, dated January 3, 2019, S.S. is in the care of W.M., subject to the supervision of Highland Shores Children’s Aid Society. This order includes a number of terms aimed at encouraging S.S. to participate in counselling. S.S. had been in several previous placements before being put into W.M.’s care in September 2018. W.M. has struggled at times to manage her care, including a brief placement breakdown in December 2018.

[9] S.S. has suffered considerable trauma for a prolonged period of time. According to Dr. Farrell’s Psychological Assessment Report dated April 10, 2018, she suffers from Post-Traumatic Stress Disorder (“PTSD”). Dr. Farrell describes her trauma as being complex; she suffers from a myriad of symptoms. He also describes her as manifesting symptoms of anxiety.

[10] Dr. Farrell made many recommendations, including that S.S. be assessed psychiatrically to determine the appropriateness of medication for stabilization purposes and adjustments as necessary. He noted ongoing monitoring for emergent mental health symptoms is necessary. S.S. is clearly a vulnerable youth whose needs are complex and challenging for any care provider.

[11] J.S. was also assessed by Dr. Farrell. His Psychological Assessment Report of her dated April 10, 2018, provides a diagnosis of PTSD as well as Generalized Anxiety Disorder. Like her older sister, she manifests complex trauma symptoms. Again, Dr. Farrell provides comprehensive recommendations including that she be assessed psychiatrically to determine the appropriateness of medication for stabilization purposes with ongoing monitoring and adjustments as necessary.

[12] Jessie Cartwright, a child protection worker, stated in her affidavit sworn May 13, 2019 that the challenges S.S. presents for W.M. made the Society wary of considering her as a permanent placement option for J.S.. Despite their reservations and having regard to J.S.’s views and preferences, the Society took steps to determine whether W.M. might be capable of parenting both children. Accordingly, commencing in March, 2019 J.S. began to spend weekends at W.M.’s home and her time there was subsequently expanded. In April, 2019 any further expansion of time in W.M.’s home was halted.

[13] Initially the Society was hopeful that a full reunion of the siblings could take place if expectations were met and the assessment after this trial re-integration was positive. The Society’s now takes the position is that it is not in J.S.’s best interest to join S.S. and be cared for by W.M. The Clinical Support Service Program does not recommend J.S. be placed with W.M. She is not engaging or using this program for its intended purpose.

[14] The Society is genuinely concerned about W.M.’s ability to manage her own mental health, while caring for two teens with significant trauma profiles and complex mental health issues and needs. The Cartwright affidavit notes W.M. has made reference to her own mental health issues including PTSD and agoraphobia. This calls into question W.M.’s ability to ensure these girls access extracurricular activities, social and community contacts, therapy and medical appointments and contact with family, all of which have been identified as essential to their wellbeing in the recommendation section of Dr. Farrell’s reports of them. W.M. does not refute these comments about her own mental health challenges in her affidavit in support of this motion.

[15] Ms. Cartwright’s affidavit goes on to explain the Society’s concern that J.S. “is being influenced by W.M. and S.S. in a way that has resulted in a downward turn in her values, commitments, and important interests”. More particularly, she has not been attending dance regularly. Routine and physical activity also form part of Dr. Farrell’s recommendations. Ms. Cartwright’s affidavit also expresses concerns about J.S.’s sudden loss of interest in her other family members, noting her absence at an important and fun annual extended family event this past summer.

ANALYSIS

Adding A Party in Child Protection Proceedings

[16] It is well established law that in determining whether to add a party to a child protection proceeding the court must consider the following five factors:

(1) whether the proposed party is a person capable of putting forward a plan that is in the children’s best interests;

(2) whether the proposed party has a legal interest in the proceedings;

(3) whether the addition of the party is necessary to determine the issues;

(4) whether the addition of the party will delay or prolong the proceedings unduly; and

(5) whether the addition of the party is in the best interests of the child.

See A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russel, 2017 ONCA 601, Children’s Aid Society of Algoma v. V.C., 2011 ONCJ 83 and Children’s Aid Society of London and Middlesex v. H.(S.), [2002] O.C. No 4491 (S.C.J.). (“H.(S.)”).

[17] It is not necessary that all factors favour the person seeking party status for the court to grant the order. See A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russel, supra, at paragraph 24, citing V.C., supra at paragraph 19. According to H.(S.) the only mandatory factor is whether the proposed party has a legal interest in the case.

[18] W.M. has appended a draft Answer and Plan of Care to her motion materials. At this stage, the merits of the Plan is not considered.

[19] W. M. has a legal interest in the proceeding as she is ultimately seeking an order placing both girls in her care on a permanent basis. In H.(S.), the court at paragraph 25 held that in child protection proceedings an interest recognized by law occurs when a court has the opportunity to make an order for or against a person in relation to the child.

[20] I find that her full participation is necessary so that she has input into and is bound by any terms and conditions which may form part of a final disposition.

[21] I share the Society’s concerns about delay and expanding the litigation. Both of these teens deserve some permanency. With proper case management, including perhaps a focused hearing on the merits, all parties and counsel can work cooperatively, as they are obliged to do, pursuant to Rule 2 of the Family Law Rules, to prevent undue delay and craft a fair and efficient process to conclude this matter.

[22] The most important and over-arching factor is the best interests of the children. I agree with the submissions made by the OCL that her role as their advocate should not be potentially compromised by submitting a Plan of Care on behalf of a caregiver. It is in the children’s best interests that the OCL continue to take steps to ascertain their views and preferences, as the case unfolds, and to advocate for any terms and conditions it believes serves their best interests, having regard to all of the evidence and their instructions. Granting W.M. party status and requiring her to submit her Plan of Care, through her own counsel, ensures the OCL is not placed in any conflict, real or perceived, in her role as advocate for her clients.

[23] In Children’s Aid Society of Brant v. N.M.P., 2016 ONCJ 266, the court noted there is a substantial difference in a third party advocating a party’s position as opposed to that party making his or her own case, concluding it is no answer to the motion that someone else, - here the OCL- can do the job.

[24] After having considered all the facts in relation to the five factors, especially both children’s best interests, I conclude that W.M. ought to be added as a party.

Production of the Kin Assessments

[25] During submissions it became apparent that the Society’s reluctance to place both children in the care of W.M. is not only based on the concerns articulated in the affidavit of Ms. Cartwright but because of other information regarding W.M. She needs this information to address properly those concerns in the advancement of her Plan of Care.

[26] Likewise, the Children’s Lawyer needs this disclosure to be fully informed about any concerns with W.M.’s Plan of Care, which in turn will likely inform her continued consultations with her clients. I find that the kin assessments in this case are relevant and necessary to assist the parties in the formulation and presentation of their case and for the court.

[27] In Children’s Aid Society of Brant v. N. M. P., 2016 ONCJ 266, Justice Baker provides a helpful and comprehensive review of the correct approach in relation to the possible production of kin assessment records. Baker. J’s analysis begins by noting that the Child and Family Services Act. R.S.O. 1990, c. C.11 does not contain statutory provisions that specifically address disclosure of kin records. This remains true under the CYFSA. The court in Children’s Aid Society of Brant v. N.M.P cites Catholic Children’s Aid Society of Hamilton v. C.C. [2013] O. J. 4163 for the proposition that each ruling should be undertaken on a case by case basis.

[28] The decision begins with a reminder that: “It was unequivocally established in New Brunswick, Minister of Health and Community Services, v. G.J. 1999 653 (SCC), [1999] 3, SCR 46, that child protection proceedings are state actions that engage the protection of section 7 of the Canadian Charter of Rights and Freedoms” The court goes on to say that this same Charter right should accrue to any added party and that depriving all parties, other than the Children’s Aid Society, of evidence that has the potential to be quite relevant and which is not subject to privilege, is completely contrary to the principles of fundamental justice. Accordingly, “the paramount objective of furthering the best interests, protection and well-being of children requires that the best possible evidence be before the court.”

[29] This procedural fairness requirement must be balanced with the privacy interests of the kin. It is acknowledged that Society records may contain very sensitive information about kin, albeit relevant information. Baker J. notes that disclosure could potentially create a chilling effect on individuals willing to put forward a plan for children. The court’s solution is to draw upon the process for records applications under section 278 of the Criminal Code. The court adopts the higher standard of likely relevant to the context of motions for production of kin records.

[30] Once the court determines this threshold for relevance has been met, it must examine the record to determine whether it should be produced to the parties, in whole or in part. This exercise entails weighing the probative value of the record against any prejudice to the privacy interest of the person about whom the records are maintained. Although not referred to in the decision, this is also the same process that occurs when a litigant asserts privilege over health records as set out in M.(A.) v. Ryan, 1997 403 (SCC), [1997] 1 S.C.R. 157.

[31] As noted above, I find that the kin record is relevant. I shall adopt the approach in Children’s Aid Society of Brant v. N.M.P.. Therefore, the kin record shall be produced to the court. I shall review it to determine whether any portion ought to be redacted or whether any terms of release should be ordered.

CONCLUSION

[32] Based on the foregoing I make the following order:

(1) W.M. shall be added as a party.;

(2) The Society shall serve her with the complete Continuing Record in the Status Review Application within 7 days of this ruling.;

(3) W.M. shall serve and file her Answer and Plan of Care for S.S. and J.S. within seven days of receipt of the Continuing Record. She shall be at liberty to amend it upon receipt of the kin assessments.;

(4) W.M. shall take steps to retain counsel, if she intends to do so, immediately.;

(5) The Society shall produce the full record in relation to the kin assessments of W.M. within 10 days of this ruling, to be provided through the Judicial Secretary Mary-Ann Valiquette (Mary-Ann.Valiquette@ontario.ca), for my review.; and

(6) Should the OCL wish to seek costs, it may make submissions within 14 days, with the Society responding in 7 days. If the Children’s Lawyer does not intend to seek costs, she shall notify the Trial Co-ordinator promptly.

Justice N. Tellier

Date: October 4, 2019