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 Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
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.
(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.: FC-19-CP57-3
DATE: 2021/10/29
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF J.S.R.M. born […] 2009, B.J.D.M. born […] 2011, N.A.L.M. born […] 2013, and C.I.A.M. born […] 2015
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant (Respondent on the Motion by the Non-Party)
– and –
H.M.
Respondent Mother (Respondent on the Motion by the Non-Party)
– and –
J.M.
Respondent Father (Respondent on the Motion by the Non-Party)
Brian Fisher, for the Applicant (Respondent on the Motion by the Non-Party)
Chantel E. Carvallo, for the Children J.S.R.M., B.J.D.M., N.A.L.M., and C.I.A.M.
Alyssa Denley, as Agent for Cedric Nahum, for the Non-Party, D.L.
No one appearing for the Respondent Mother
No one appearing for the Respondent Father
HEARD: October 18, 2021 (By Zoom)
ENDORSEMENT
MADAM JUSTICE S. CORTHORN
Introduction
[1] This application is for a status review of an order for the placement of four children in Extended Society Care. The respondents to the application are the parents of six children:
• M.M. (DOB: […], 2004);
• J.J.D.M. (DOB: […], 2007);
• J.S.R.M. (DOB: […], 2009);
• B.J.D.M. (DOB: […], 2011);
• N.A.L.M. (DOB: […], 2013); and
• C.I.A.M. (DOB: […], 2015).
[2] The four youngest children (“the Four Children”) are the subjects of this application. The two oldest children are, independent of this proceeding, each the subject of an order for Extended Society Care. None of the children are First Nations, Inuk, or Métis.[^1] The Four Children were previously in Society Care from August 2019 to March 2021.[^2]
[3] The non-party, D.L., brings this motion for an order adding her as a party to the application. D.L. has put forth a plan of care for the Four Children.
[4] The Office of the Children’s Lawyer (“OCL”) represents the Four Children. The OCL consents to the relief sought.
[5] The Children’s Aid Society of Ottawa (“the Society”) does not consent to the relief sought; it does not, however, oppose the motion.
The Society’s Involvement to Date With the Family
[6] The family previously lived in Alberta. The mother remains in Alberta. The father was granted sole custody of the children while the family was still living in Alberta. The Society’s evidence is that there was “extensive child protection involvement” with the family when they lived in Alberta.[^3]
[7] In 2018, the father moved to Ontario with all of the children. They first resided in the Niagara Region and subsequently moved to the Ottawa area.
[8] Given the number of children involved and the number of orders made with respect to one or more of the children, a chronology is helpful. The evidence upon which the Society relies identifies that its involvement with this family began in the latter half of 2019 and continued as follows:
Oct. 9, 2019 Pursuant to the order of Parfett J., all of the children are found to be in need of protection. The oldest child, M.M., is placed with her half-sister (the father’s daughter from a previous relationship), who lives in the Ottawa area, subject to Society supervision. The other five children are placed in Interim Society Care for three months. The parents’ access is at the discretion of the Society in keeping with the best interests and wishes of the children.
Aug. 6, 2020 Pursuant to a temporary supervision order, M.M. is placed with the non-party, D.L.
Aug. 17, 2020 Justice Blishen makes an interim order, on a without prejudice basis, pursuant to which the oldest child is placed with D.L., subject to Society supervision and to terms with respect to the parents’ access to the oldest child.
Jan. 19, 2021 D.L. reports that M.M. is upset and has left D.L.’s home, stating that she will not return to that home.
Jan. 22, 2021 M.M. reports that she wishes to return and would consent to an order for Extended Society Care. Her desire is to transition to living on her own.
Mar. 8, 2021 A settlement conference is conducted by Justice Engelking. She makes an order, effective March 9, 2021, and on the consent of all parties, for extended Society Care for M.M.
Mar. 9, 2021 M.M. is placed in Extended Society Care.
Mar. 25, 2021 Justice Somji makes a temporary without prejudice supervision order, with conditions, in favour of the father for the five youngest children.
May 17, 2021 A final, six-month supervision order in favour of the father is granted by Justice Engelking.
Jun. 14, 2021 J.J.D.M. is brought to a place of safety.
Jun. 17, 2021 Pursuant to a temporary without prejudice order, Engelking J. places J.J.D.M. in Society Care.
Jul. 15, 2021 The Four Children are brought to a place of safety. They are returned to the foster home in which they had previously resided for approximately 600 days (i.e., August 2019 to March 2021).
Jul. 20, 2021 Pursuant to a temporary, without prejudice order, Engelking J. places the Four Children in Society Care. On that same date, and with the father’s consent, Engelking J. grants an Extended Society Care order with respect to J.J.D.M.
Aug. 3, 2021 There is a ‘To Be Spoken To’ attendance before this court. The father does not attend.
Aug. 10, 2021 The Thirty-Day Plan of Care Meeting is held and the foster mother reports that the Four Children are adjusting well to the return to her home.
Sept. 14, 2021 A Family Network Meeting is held. Three potential plans of care are discussed, including one from a former foster mother in Alberta, one from the current foster mother to the Four Children, and D.L.’s plan of care.
[9] For a number of reasons, the Society has determined that it will rely on D.L.’s plan as the “starting point” with respect to the Four Children. As of the date of the Family Network Meeting, it is the Society’s plan to conduct a kin assessment. The Society expects that assessment will take between 30 and 60 days, from mid-September, to complete. [^4]
[10] The father is reported to be supporting the plan put forward by the current foster mother to the Four Children. [^5]
[11] In addition to proceeding with a kin assessment related to D.L., the Society planned to arrange for a representative to meet with D.L. to discuss a number of concerns that have been raised about her current conduct and/or relationship with the Four Children. Those concerns include, for example, appropriate boundaries for the presence of others in D.L.’s home, D.L.’s communication with the current foster mother, and the frequency and duration of D.L.’s visits with the Four Children.
[12] As a result of those concerns, the Society submits that it is not in a position to consent to the addition of D.L. as a party to this proceeding. The Society submits that it is not possible for it to assess, for example, whether D.L.’s plan is in the best interests of the Four Children.
The Issue
[13] The sole issue to be determined on this motion is whether D.L. is to be added as a party to this Status Review Application.
Disposition
[14] For the reasons set out below, I conclude that D.L. shall be added as a party to this Status Review Application.
The Law
[15] D.L. seeks to be added as a party to a proceeding under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the CYFSA”). The paramount purpose of the CYFSA “is to promote the best interests, protection and well-being of children”: s. 1(1). Section 79 of the CYFSA sets out who the required parties are for proceedings pursuant to that statute. D.L. does not fall within any of the enumerated categories of individuals who are required to be parties to a proceeding under that Act.
[16] The addition of a party to a proceeding, including a proceeding under the CYFSA, is governed by r. 7(5) of the Family Law Rules, O. Reg. 114/99 (“FLR”). It provides that, “[t]he 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.”
[17] The FLR do not set out the criteria to be met for an order to be made under r. 7(5). Those criteria are based on the case law. The questions to be posed on a motion of this kind are set out at para. 16 of the decision of Tellier J. in Highland Shores Children’s Aid Society v. T.S., 2019 ONSC 5765:
(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 [children].
[18] The only mandatory factor is that the proposed party has a legal interest in the case; it is not otherwise necessary that all factors favour the addition of the proposed party: Highland Shores CAS, at para. 17.
Analysis
[19] I turn first to the sole mandatory factor and answer the question whether D.L. has a legal interest in the case. The answer to that question is determined by considering whether an order can be made in favour of or against her: Highland Shores CAS, at para. 19.
[20] D.L. is a member of the Four Children’s community. She is someone who has proposed a plan of care. Her plan of care has become the Society’s “starting point” for consideration. I find that the court could make an order in favour of or against her.
[21] I turn to the remaining four questions.
▪ Is D.L. capable of putting forward a plan that is in the best interests of the Four Children?
[22] The Society submits that it is not in a position to consent to the relief sought because it is unable to address this criteria. The Society’s inability to do so is based on its concerns about D.L. and boundaries, communication with the foster mother, etc. I find that the Society is applying too strict an interpretation of this criteria.
[23] I agree with the Society that it is not possible to determine at this stage whether the plan of care put forward by D.L. is in the best interests of the Four Children. The lack of certainty in that regard does not preclude a finding, however, that D.L. is capable of putting forward a plan of care that is in the best interests of the Four Children. Given her historical involvement with the family, including the eldest child, I find that D.L. is capable of putting forward such a plan of care.
[24] There may be more than one person who is capable of putting forward a plan of care that is in the best interests of the Four Children. If so, then the court may ultimately have to make a determination as to which of those plans is in the best interests of the Four Children.
▪ Is the addition of D.L. as a party necessary to determine the issues?
[25] Unless D.L. is added as a party, her plan of care will not be put before the court and she may be denied the opportunity to testify: A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601, at para. 34. At a minimum, adding D.L. as a party will assist in clarifying the bests interests of the Four Children: A.M., at para. 35.
[26] It would not be appropriate to expect or request that the OCL, for example, submit a plan of care on behalf of D.L. To have the OCL do so could potentially compromise its role as the advocate for the Four Children, and place it in a conflict, real or perceived, in that role: Highland Shores CAS, at para. 22. It is, in any event, not an answer to D.L.’s motion that someone else be asked to advocate her position instead of permitting her to do so: Highland Shores CAS, at para. 23.
[27] I find that the addition of D.L. as a party is necessary to determine the issues on this application.
▪ Will the addition of D.L. unduly delay or prolong the proceeding?
[28] The Society is already aware of D.L.’s plan of care and has decided to use it as the “starting point” for consideration in the context of this application. D.L.’s plan of care has been prepared and can be served and filed with the court immediately. There is no evidence that the addition of D.L. as a party will result in any delay of or otherwise prolong the proceeding. This factor does not give rise to a basis upon which to deny D.L. party status.
▪ Is the addition of D.L. as a party to the proceeding in the best interests of the Four Children?
[29] Permitting D.L. to present her plan and give evidence will permit the court to assess the plan, assess D.L.’s evidence, and determine whether her plan is in the best interests of the Four Children. The evidence before the court at this time supports, and I make, the following findings:
• D.L. has been and continues to take steps to prepare her home to make it as suitable as possible for the Four Children;
• By doing so, and through her historical involvement with the Four Children, D.L. has demonstrated that she cares for the Four Children; and
• D.L. has historical involvement with the Four Children and their two elder siblings.
[30] I am satisfied that D.L. is a member of the Four Children’s community and, as such, it is in the best interests of the Four Children that she be added as a party to the proceeding.
Summary
[31] I find that each of the five factors listed in Highland Shores CAS favours the addition of D.L. as a party to this application. I therefore make the following order:
D.L. shall be added as a respondent to the proceeding.
The title of proceeding shall be amended to include D.L. as a respondent and all documents served subsequent to the date of this order shall include D.L. as a respondent.
D.L. shall comply with the Family Law Rules, O. Reg. 114/99 with respect to the timing of her response to the Application.
[32] If there is any other form of relief that the parties and/or D.L. require to facilitate her addition as a party to the proceeding, counsel may arrange a “To Be Spoken To” event before me on a date to be selected with the assistance of the Office of the Family Trial Co-ordinator.
Madam Justice S. Corthorn
Released: October 29, 2021
COURT FILE NO.: FC-19-CP57-3
DATE: 2021/10/29
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF J.S.R.M. born […] 2009, B.J.D.M. born […] 2011, N.A.L.M. born […] 2013, and C.I.A.M. born […] 2015
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant (Respondent on the Motion by the Non-Party)
– and –
H.M.
Respondent Mother (Respondent on the Motion by the Non-Party
– and –
J.M.
Respondent Father (Respondent on the Motion by the Non-Party)
ENDORSEMENT
CORTHORN J.
Released: October 29, 2021
[^1]: This finding is made in the October 9, 2019 order of Parfett J., pursuant to which all of the children were found to be in need of protection. See the chronology set out in para. 8 of this endorsement. [^2]: See para. 40 of the September 1, 2021 affidavit of Child Protection Worker, N. King (“King Affidavit No. 1”) and the chronology set out in para. 8 of this endorsement. [^3]: See para. 39 of King Affidavit No. 1. [^4]: See paras. 10 and 13 of the October 12, 2021 affidavit of CPW King (“King Affidavit No. 2”). [^5]: See para. 12 of King Affidavit No. 2.